Faw v. Marsteller. 2 C.

non-payment thereof hath been owing to the creditor; or where other circumstances arise, which, in the opinion of the court before whom the cause is brought to issue, would render a determination agreeable to the above table unjust; in either case it shall and may be lawful for the court to award such judgment as to them shall appear just and equitable."

The terms used in the third member of the sentence are certainly very comprehensive, and their general natural import does not appear to be so restrained by their connection with other parts of the section as necessarily to confine their operation to cases where debtors only can derive advantage from them.

The legislature was performing a very extraordinary act. It was interfering in the mass of contracts entered into between the 1st of January, 1777, and the 1st of January, 1782, and ascertaining the value of those contracts by a rule different from that which had been adopted by the parties themselves. Although the rule might in the general be a just one, yet that it would often produce excessive injury to one or other of the parties, must have been foreseen. It was, therefore, in some measure necessary to vest in the tribunals applying this rule a power to relax its rigor in such extraordinary cases. This sentiment might produce the 5th section, and if it did, the general terms used ought to be applied to the relief of the injured party, whether he was the creditor or the debtor.

1

The opinion that the creditor could not in the contem-plation of the legislature be the injured party, because the [ 29 ] scale of depreciation gave him the full value of his contract, does not seem to be perfectly correct. According to the law of the contract, all moneys accruing under it, which were not received during the currency of paper, would be payable in such other money as might be current at the time of payment. It is impossible to say by any general rule what influence the knowledge of this principle might have on the parties, in every case where the contract was continuing and was to be fulfilled at future very distant periods. Unless the rule applying to such cases possessed some degree of flexibility, it is apparent that the one or the other of the parties would often be injured by the interference of the legislature with their contract, and this injury would most generally be sustained by the creditor, in all cases like that at bar, because in all such cases the conviction that a more valuable medium than that circulating at the time would return during the continuance of the contract, must have had considerable influence on the parties in fixing the sum of money agreed to be paid.

There appears, therefore, nothing in the state of the parties to be

Faw v. Marsteller. 2. C.

affected by the 5th section of the act, which should prevent its appli cation, either to creditors or debtors, as the real justice of the case may require.

But admitting the correctness of this opinion, it is contended that no circumstances can be given in evidence to explain a written contract, and therefore it is said, that the judgment of the court in this case must be governed absolutely by the deed of August, 1779, unless other subsequent and independent events should control that deed.

The rule which forbids a deed to be contradicted, or explained by parol testimony, is a salutary one, and the court is not disposed to impair it. The application of that rule to this case, however, is not perceived. The testimony which brings this contract within the 5th section neither contradicts nor explains the deed. It is not pretended

that the deed was not executed on the consideration ex[ 30 ] pressed on the face of it. But according to the law which existed when the deed was executed, that consideration would be payable only in gold and silver coin, when gold and silver coin should become the only currency of the country. The law changing the nominal sum of money by which the debt should be discharged, and giving a general rule by which a different sum from that agreed on by the parties is to be paid and received, authorizes a departure from the rule where circumstances shall arise which render a determination agreeable to it unjust. The examination of these circumstances is not entered into for the purpose of contradicting or explaining the deed, but for the purpose of determining which of two rules given by the statute altering the law of the contract does really govern the case.

The argument that the exception, if it receives the construction which the court seems inclined to give it, would destroy the rule, must be founded on a supposition that in every case the circumstances would be looked into, and a slight injustice in the application of the scale of depreciation to the contract would be deemed a sufficient motive for departing from it. But this is not the opinion of the court, and it may very readily be perceived that the great mass of contracts made during the circulation of paper money, may be decided by a general scale estimating the value of those contracts, although there may be very strong features in some few cases, which distinguish them as of such peculiar character, that they are embraced by the clause which measures their value by the standard of justice.

But although the just construction of the 5th section of the law admits a creditor, who would be greatly injured by the application of the general rule to his case, to show circumstances which authorize

Faw v. Marsteller. 2 C.

a departure from that rule; it is contended that such circumstances have not been shown in the cause under consideration.

It is said that the case ought to be an extraordinary one; that the circumstances ought to be uncommon which would warrant a departure from the general principle established for the government of contracts generally.

• This is true, and the court would certainly not feel itself

at liberty to exercise on a common occasion a discretionary [ 31 ] power, limited only by the opinion entertained of the naked justice of the case.

The

But this appears to the court to be an extraordinary case. evidence goes a great way in proving that the parties to the contract believed that the sums becoming due under it, would at no distant period be payable in specie only. This testimony is the more to be credited, because it is not easy to conceive any other motive for disposing of the property on the terms on which it was parted with; and still more, because such was the operation of the existing law on the contract when it was entered into. Under this impression, an impression warranted by the law of the land, a very valuable property has been conveyed away for what would have been, under the then existing law, a full consideration, but which a subsequent act of the legislature has reduced certainly to a tenth, perhaps to a twentieth, of the real value of the estate disposed of.

Such a case is, in the opinion of the court, an extraordinary case, which is completely entitled to the extraordinary relief furnished by the act, which has occasioned the mischief.

In inquiring to what extent this relief ought to be afforded, or, in the words of the law, what "judgment will be just and equitable," the court can perceive no other guide by which its opinion ought in this case to be regulated, but the real value of the property at the time it was sold. The record does not furnish satisfactory evidence of this value. It is proved that a lot not superior to that which occasioned the present contest, rented in the year 1774 for 137. 5s. per annum, and that other lots, perhaps not equal to it, rented in 1784, for 25l. per annum. It is even proved that a small part of the very lots, about the value of which the inquiry is now to be made, rented in the year 1784, on a ground-rent forever, for 25l. 16s. per annum. These are very strong circumstances in support of the de cree of the circuit court, fixing the rent at 261. per annum, *the nominal sum mentioned in the lease. But a majority [* 32] of the judges are of opinion that the value must be ascertained by a less erring standard.

Faw v. Marsteller. 2 C.

Neither the value in 1774 nor in 1784 ought to regulate the rent. The value at the date of the contract must be the sum which in equity and justice the lessee ought to pay, and as this value is not ascertained by the testimony in the record, it ought to be found by a jury. In finding this value, however, the jury ought not to be governed by the particular difficulty of obtaining gold and silver coin at the time, but their conduct ought to be regulated by the real value of the property, if a solid equivalent for specie had been made receivable in lieu thereof. On these principles the court has directed the following decree:

This cause, which was abated by the death of the appellee, and revived in the name of his administrator, came on to be heard on the transcript of the record, and was fully argued by counsel. On consideration whereof the court is of opinion, that there is error in the decree of the circuit court in this; that the rents reserved in the lease in the proceedings mentioned, bearing date the fifth day of August, in the year of our Lord one thousand seven hundred and seventy-nine, and which were in arrear and unpaid, were decreed to be paid at their value according to the scale of depreciation when the same became due; and that those rents which accrued after the 1st of January, 1782, are decreed to be paid according to the nominal sum mentioned in the lease; whereas the annual rent reserved in the said lease ought to be reduced to such a sum in specie, as the property conveyed was, at the date of the contract, actually worth ; to ascertain which the evidence of the cause not being sufficient for that purpose, an issue ought to have been directed, according to the verdict on which, if satisfactory to the court, the final decree ought to have been rendered.

This court is, therefore, of opinion that the decree ren[33] dered in this cause in the circuit court for the county of Alexandria ought to be reversed, and it is hereby reversed and annulled; and the court, proceeding to give such decree as the circuit court ought to have given, doth decree and order that an issue be directed between the parties to be tried at the bar of the said circuit court, in order to ascertain what was the actual annual value in specie, or in any other money equivalent thereto, of the half-acre lot of ground which was conveyed, by the executors of John Alexander, deceased, to Abraham Faw, on the fifth day of August, 1779, and that in the account between the parties, in order to a final decree, the representatives of said Philip Marsteller be allowed a credit for the rent which has accrued, and which remains unpaid, estimating the said annual rent at such sum as the verdict of a jury, to be approved of by the said circuit court, shall ascertain the half-acre lot

Pennington v. Coxe. 2 C.

of ground before-mentioned to have been fairly worth at the date of the contract under which the same is claimed by the said Abraham Faw.

OGLE V. LEE.

2 C. 33.

THIS cause came up to this court upon a question on which the opinions of the judges of the circuit court were opposed.

It was made a question, whether this court would consider the whole case, or only the question upon which the court below divided.

THE COURT were unanimously of opinion, that they could only consider the single question upon which the judges below divided in opinion, but that the parties will not be precluded from bringing a writ of error upon the final judgment below; and the whole cause I will then be before the court. A court may at any time reverse an interlocutory decree.

The case was afterwards settled by the parties.

2 B. 430; 3 Wal. 250.

PENNINGTON v. COXE.

2 C 33.

Under the act of June 5th, 1794, (1 Stats. at Large, 384,) duties did not accrue on refined sugar while it remained in the manufactory unsold, and consequently, when this act was repealed by the act of April 6th, 1802, (2 Stats. at Large, 148,) the saving of duties which had accrued, did not apply to such sugars.

This was a writ of error to the circuit court for the district of Pennsylvania. It was a feigned issue to try the question, whether duties were payable under the act of June 5th, 1794, (1 Stats. at Large. 384,) on refined sugar remaining in the manufactory unsold on the 1st of July, 1802. The facts sufficiently appear in the opi nion of the court.