Inman v. Griswold

Curia. This is not an application to be relieved from a1 penalty, under the equitable power of the Court. The defendant asks us to discharge him from the real debt, upon-the ground that he had agreed to pay, and the plaintiff to accept, a less sum by a given day; though there was an utter default in paying, or attempting to pay that sum, until long after the day. Suppose the whole of this matter had been written in the condition, how would it read there ? It would: _ihen be to pay the real debt of $1378 : but if 250 dollars are paid by the given time, then this real debt to be void otherwise of full force and virtue. It might possibly, in such a case, extinguish the debt, if paid by the day ; though of this, there would be some doubt. But most clearly, without a payment, strictly within the time, it could not have that effect. It is like saying, under seal, “ pay me less and I will discharge you.” The condition must be complied with, or the offer goes for nothing. The cases supposed by the defendant’s counsel to bear most upon the present, were those which he cited from Cro. Eliz. But the question presented by the first case, was merely whether the instrument was valid as a defeasance. It had been strictly complied with; and in the.last case, the question was, whether, after pleading a tender, which we must take to havé been strictly according to the defeasance, the defendant was bound to say tout temps pris, and holden not, because the act of tender was a discharge. The motion must be denied ; and [203] we grant the application to amend, without requiring notice to be given. These amendments are often granted, in answer to a motion for setting aside the proceedings, upon the papers presented to impeach them, without requiring the party amending, to notice the motion on his part. Such is the conclusion to which we have arrived upon .this summary application. Though the motion is denied, yet the party may, if he chooses, have it determined in a more solemn way. Indeed, we perceive, by the affidavits, ■that an action of debt for an escape upon this ca. sa. is now pending, wherein the whole matter may be litigated. Rule accordingly. (a) Footnotes [(a)] If a creditor agree to remit part of the debt, upon condition that the residue be paid within a certain time, the condition must be strictly performed ; but he may, by his consent, enlarge the time, and such consent will bind him in equity. (Robertson v. Campbell & Wheeler, 2 Call, 431.) An agreement of a creditor to remit the damages, recovered upon the affirmance of a judgment, upon condition that the debtor pay the balance, with' interest, by a certain time, is binding upon him, and will be enforced in equity. (Ibid.)