August 30, 1790. Where a legatee accepts of M'TEER against the Executors of FERGUSON. THIS was an action of debt on bond. The bond was a bond from entered into in the life-time of testator, previous to the 1st the executor for the amount of January, 1787, and came under the instalment act, which of his legacy, it extinguishes makes all debts previous to that day payable by five equal anthe legacy, nual instalments. and creates a new debt ; and, if given comes under Read offered evidence to shew that this bond was given before 1787, it for a legacy due to the plaintiff, which was in the hands of the instal- testator, as executor of the estate from which it is payable. Notwithstand That it therefore came under the denomination of money ing, the amount in the had and received by the testator to the plaintiff's use, which ment law. hands of exe cutor, if no was one of the exceptions in that act, and insisted that this such bond had debt was not liable to be paid by instalments. been accept ed,might have been money ved in his Pinckney, for defendants, cited Buller, 182. "That a bond had and recei❝given to a legatee extinguishes the legacy." From whence hands for le- he argued, that the bond created a new debt, in which not gatee's use. the estate, but the executor, in his private capacity, was the debtor; and that from this change of the nature of the debt, all relation with the legacy was determined. WATIES, J. charged the jury, that this bond clearly created a new debt, which the legatee thought proper to accept of, in lieu of the bequest mentioned in testator's will, and as it was previous to the 1st of January, 1787, it came under the instalment act, and was no otherwise recoverable than as that act directs; and the jury found accordingly. BRISBANE against LESTARJETTE. August 30, 1790. CASE on a note of hand, given by defendant, and indors- The indorsee ed to plaintiff. cannot recover on a note given for an deration, if he have known shew The defendant admitted the note, but gave evidence that illegal consiit was given when the British army were in Charleston, and appears to when the parties were within their power and jurisdiction. of it; or if he That the defendant was arrested by process from the British cannot that he gave a board of police, and being unable to pay the sheriff's fees, he valuable congave this note for the amount of those fees. That the plain- it. tiff indorsee was present at the time, and knew the consideration of the note to be such. The plaintiff did not shew that he had paid any person valuable consideration for the note. Fraser, for the defendant, insisted, that the note was given on an illegal consideration, the British board of police having been repeatedly adjudged in this court an illegal body, and all acts done under their authority void. The plaintiff was present, and knew the illegal and oppressive circumstances. under which the note was obtained. He cannot be considered as an innocent indorsee, when he took it with his eyes. open. Pinckney, contra, contended, that it was a plain negotiable note, which appears to have been regularly indorsed, and is good under the statute. That however improperly the police, its officers, or suitors might have acted, the plaintiff had no agency in the business. He took it on the footing of its negotiability. WATIES, J. When a note appears to have been given for an illegal consideration, the indorsee cannot recover if he appears to have known it; nor unless he prove that he gave valuable consideration for it. Verdict for defendant. VOL. I. sideration for August 30, 1790. A depreciation, fixed by fore the de shali bind the Corcock and GIBBONS against WAINWRIGHT. THE plaintiffs had been indebted to the defendant, in a arbitrators be- bond given (as it appeared) for the purchase of a house, in preciation act, the time of depreciated money, and while the British were in possession of Charleston. The defendant threatening to sue them, the plaintiffs, to avoid, as they alleged, an unpleasant contest, agreed to pay the debt, on its being liquidated, with such depreciation as arbitrators should fix. At that that act would time, no depreciation table was established. The debt was have compel. led them to depreciated by the arbitrators, and the money paid. Afterhave paid. parties; though the plaintiff's may have been obliged to pay considerably more than wards, when the legal depreciation table was established by the legislature, it appeared that the plaintiffs had paid much more than that table would have fixed the bond at. The plaintiffs commenced this action (for money had and received) to recover back the surplus. The defendant proved that the house was worth the sum fixed by the arbitrators, and contended that no injustice was done. That the plaintiffs were bound by their subsequent acquiescence to the arbitration, WATIES, J. Even if a settlement were made by parties at this day, though different from the depreciation table, it would bind them. This is a liberal action, and the jury can do what appears to them to be equitable and conscientious. There are two questions. 1. Whether the depreciation table does apply; and I think it does not in this case. 2. Whe ther this was a fair and voluntary settlement; I think it was, The house appears to have been worth then, as well as now, the sum fixed by the arbitrators. Nothing appears to impeach the transaction. Verdict for defendant. See the case of M'Graw and wife v. Lowndes, vol. 2. 1790. PETRIE, survivor of HAWKINS, against SMITH. Tender r paper curren ry, 1780, be out of eirenla THIS was an action of debt on an old bond, dated in 1775, and payable in 1776. To this there was a plea of cy, in Janua tender of the bills of credit, circulating in the year 1780; and under this plea evidence was given of a tender made by James Edwards, on the 27th January, 1780, to the attorney or agent of the plaintiff; and the identical bills were brought into court and sworn to. Pinckney, for defendant, contended, that if this tender did not go to the discharge of the debt, yet it should discharge the interest on it, from the day the tender was made, till the time of suing the writ. To prove the money was a tender, he cited a resolve of the provincial congress in 1776. For plaintiff, it was said, that the jury should avoid the tender, as it was made in a currency worth nothing, and to an attorney. That the difference between sterling money at the time of the contract, and the present sterling money (being 3 4-7 per cent.) ought to be allowed. For defendant, it was insisted, that tender to an attorney is good under an act of assembly. WATIES, J. charged, that the tender was good. That the clause of the resolve of the provincial congress applied to this money. As to the 3 4-7 per cent. it is the difference. made by the legislature between the coin in the then currency and now. The law is clear, and the jury have no discretion in the case, and this is equally the case, although no ten der of money had been made. The Jury stopped the interest from the tender to the date of writ, turned the debt into present currency, by advancing upon it 3 4-7 per cent. and returned a Verdict for plaintiff fore it weat tion, is good, and shall stop the time of interest from such tender. September 1, 1790. A. makes an agreement to B. or his an indorse back of such LANE, SON & FRASER, against WINTHROP, THIS was an action on the case, brought on the followto deliver rice ing note against the defendants, as copartners, upon their assigns; B. acceptance. The note was "For value received, Boston, afterwards, by 21st October, 1785, I promise, in behalf of Winthrop, Todd ment on the "Winthrop, merchants of Charleston, South-Carolina, "to ship on account of Nathaniel Tracey, Esq. or his asrice to be designs, a thousand tierces of rice, in all the month of December, or so soon as the new rice comes to market, in any vessel or vessels he or they may direct; the same to be addressed to Messrs. Lane, Son & Fraser, in Lon agreement, directs the livered to C. which is accepted of and signed by 1. This shall create a new contract be- "don. tween A. and preclude any discount or equity being gone into, be (Signed) (Indorsed thus) "THOS. L. WINTHROP." "Deliver the within mentioned rice to Messrs. Lane, tween A. and "Son & Fraser, or order. B. the origi nal contract ing parties. "NATH. TRACEY." And accepted thus. "Accepted to deliver the within as "above, in behalf of Winthrop, Todd & Winthrop. "THOS. L. WINTHROP." This last acceptance was made after the indorsement by Tracey. The declaration stated the circumstances; and the above note, with its indorsement and acceptance, was given in evidence to support it. Rutledge and Pringle, for the plaintiffs. Pinckney and Bay, for the defendants. Bay objected to this note and indorsement being given in evidence, in favour of the plaintiffs, as he said they could not maintain any action thereon. He moreover stated, that the defendants had a discount against Tracey, to the whole value of the rice, which they would be precluded from re |