McCalla v. Ely

The opinion of the court was delivered, by Sharswood, J. — The plaintiff in error did not allege in his affidavit of defence in the court below that he assumed a personal liability for the mortgage-debt in legal tender notes. If he had there might be something in the argument, that the terms of the original mortgage were changed by an agreement on sufficient consideration. Even then it may well be doubted whether an attorney at law could bind his client by such an engagement. All that' is said is “ that he asked for delay, which was granted till May, and that it was understood and agreed that the principal should then be paid in legal tender notes.” The subject was the mortgage which was payable in silver, and upon the true construction of the affidavit, the agreement was that the mortgage should be payable in legal tender notes, not that the terre-tenant would personally pay it. This was clearly without any consideration. According to the principle of Bronson v. Rodes, 7 Wallace 229, the judgment of the court for the principal in lawful silver money of the United States in the terms of the mortgage was right. And that the interest must be in the same kind of money as the principal is very plain. Lawful interest is six per centum of the principal in whatever money the principal is payable, for it follows the principal as the shadow does the substance.. Instead of the rule being that the interest must he made payable “ in like lawful money,” though those words are sometimes introduced ex majori cautela, it is evident that unless the contrary is expressed it is a mere proportion of the principal debt. Judgment affirmed.