
    Watson & Hartshorne v. Alexander.
    October Term, 1794.
    Statute for Scaling Debts — Por Whose Benefit. — The two first branches of the fifth section of Act of Scaling Debts, was intended for the benefit of debtors: the third is intended equally to benefit creditors and debtors.
    Same-How the Equity of This Act Brought before Court — Verdict.—The proper mode of bringing before the Court, the 34quity claimed under the fifth section of this Daw, is by a special verdict finding the facts on which the .Equity is to arise; or for the Court to instruct the jury, on the evidence given to them, upon the equitable circumstances of the case; or to hear the evidence upon the Equity of the case at the trial, and then to correct the verdict accordingly. But it is improper in the Court, after the verdict is rendered, to receive evidence. and on that to vary the verdict.
    Landlord and Tenant — Rent— Scale oí Depreciation. — A conveyance of land in fee .simple in 1779. upon a ground rent, charged thereon, payable in current moneyr -the rent is subject to the scale of depreciation.
    Sfflwae — Rent--Tenant Cannot Repel Claim. — If the tenant has enjoyed the land, he cannot repel the landlords claim oí rent, by saying he has nothing in the land;*’ or, that the conveyance was void.
    Deeds — Failure to Grave Oyer — Variaíace—Effect.— Action of covenant upon a deed executed by four persons. The defendant pleads covenants performed. without ashing oyer of the deed. Although the deed set forth in the record, appear to have been executed by only three of the persons, the Court will not notice the variance.
    This was an action of covenant brought by the appellee against the appellants in the District Court of Dumfries. The case was as follows: John Alexander, by his will devised to the appellee, his son, in fee simple, a tract of land lying in and adjoining to the town of Alexandria part whereof was laid off into lots. He further devised, that if his executors therein after named, should think it conducive to the interest of his said son, to lease out the whole, or any part of the said land, reserving ground rents for ever; that they, or the survivors might lay the same off into lots, and give leases therefor in fee simple, reserving an annual ground rent to his son, and his heirs: and he appointed four persons his executors. — In August 1779 a deed was executed purporting to be made by the four executors of the first part, the appellants of the second part, and the appellee of the third part, (who was then an infant) conveying the lots in question to the appellants in fee, reserving an annual rent of £78: 10, current money of Virginia, payable to the appellee and his heirs, with a covenant on the part of the appellants to pay the .said rent annually to the appellee and his heirs. The ‘deed of which a profert was made, and upon which this action is founded, is made part of the record, and appear»s to be signed by three of the executors, and the appellants, and by no one else. The action was brought for 9 years rent in arrear and unpaid, and the declaration slates the lease to be made by the four executors, of the first part, the appellants of the second part, and the appellee of the third part. The appellants after taking an imparlance, pleaded covenants performed. The jury found a verdict for the plaintiff, and assessed his damages at £(>26, '“’subject to the opinion of the court, whether the rents in the declaration mentioned, and granted by the deed therein set forth, be within the operation of the act of Assembly, entitled an act, directing the mode of adjusting and settling the payment of certain debts and contraéis, and for other purposes. ” fc< And if they be, by what rule the same ought to be reduced into specie value, if they ought to be reduced at all, and that the said damages may be reduced according to the same rule that shall be applicable to the said rents.”
    The District Court examined witnesses, and being satisfied, (as the record states,) that the rents for which the action was brought, were expected to be paid in the money current at the time they should become due, gave judgment for the damages found due by the jury in specie. To the examination of the witnesses the appellant filed a bill of exceptions, and appealed to this court.
    Dee for the appellants.
    The first question which arises in this cause is, whether the deed upon which the action is founded, be within the operation of the act of November 1781, c. 22; and I contend that it is. The legislature, when they passed this law, had put a period to the existence of paper money, by calling the whole of it out of circulation. During its circulation, it had, from its constant depreciation, united with the 'exertions *of the legislature to support its credit, and to re-assure the confidence of the public mind, given birth to a multitude of contracts, which depended for their performance upon its continuing to exist. It had also given rise to innumerable speculations, founded in a difference of opinion between those, whose confidence in the public assurances led them to expect specie in lieu of it, at par, and those who calculated upon its progessive depreciation, and its ultimate destruction. In this situation of things, when the legislature, at one stroke, dispelled the delusion, it became an indispensable duty with them to establish some general and fixed rule for the discharge of those contracts, to prevent the- injustice which might otherwise have ensued, if debtors should have been compelled to pay specie, where they only calculated upon paying depreciated paper money. This rule then became necessary in all cases, where money was contracted to be paid, and the words of the law are sufficiently general to comprehend every possible contract. The cases which are within the letter of the law are, all debts and contracts entered into in current money, between the 1st of January, 1777, and the 1st of January, 1782. This case, then, is strictly within it, and . is equally within the mischief meant to be ^provided against. It cannot be otherwise considered, because it is a contract always continuing, unless the law be rendered a dead letter. Por where will the court draw the line? Would debts payable by installments in one, two, fifty or a thousand years, come within the law? Would rents reserved upon a lease of an hundred years? If all of them would, this would. If some of them would not, I ask which they are, and upon what principle the discrimination can be made? I think then there is no doubt, but that this case comes within the general rule established by this law, and that the rents ought to be reduced according to the scale, unless the next question to be considered be against me, and that is,
    2dly, Whether this case be within the benefit of the Sth section of that law? That section was intended to reach the case of debtors only, and not that of creditors. The two instances specified in the first part of the clause, are clearly intended for the benefit of the former, namely, 1st, where the debt has been tendered and refused; and 2dly, 1 ‘where the non-payment is owing to the creditor.” The third branch of the section, which provides for cases in ‘ ‘which 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” — was intended to comprehend cases not within those specified, which could not then be foreseen, and where from other causes the debtor might be injured, if the scale were strictly to be applied. On the other hand, if the court consider both the creditor and debtor as coming within the operation of this clause, the consequence will be, that the law will furnish no rule at all, and the legislature might as well have left all cases to be decided by the court under the Sth section of the law; because the construction which will be contended for by the counsel on the other side, will produce the very same effect, and will render the rule a mere nullity. But admit that this case is within the operation' of the Sth section, I insist,
    3dly, That it does not warrant the court in a departure from the general rules-of evidence, or of judicial proceeding. One of those general rules is, that parol evidence is inadmissible to contradict a written agreement; another is, that the jury are to decide upon facts; and the court upon the law arising out of those facts. There is nothing in this act, which authorises the adoption of a different rule. The evidence, if it could properly have been admitted, should have been heard and decided upon, pending the trial, or should have been brought before the court by ^regular pleading. The case of Pleasants and Bibb in this court and that of Boudon and Stotsdale in the General Court were decisions favorable to the appellant.
    But if all these points be against me, I ask what can this court do, or how are they to decide; They should have the same means of judging upon the evidence, that the District Court had, else they cannot say whether the opinion of that court be right or wrong. It is the business of the appellee to produce the testimony relied upon to support that judgment; and if it be not offered to this court, the judgment must be reversed.
    There is another objection which arises out of the pleadings, and which I conceive will be fatal to the judgment below. The deed .set forth in the declaration, is substantially variant from that offered in evidence. It is stated in the declaration, to be made by the four executors on the first part, and by the appellee on the third, whereas it appears to be executed by only three of the executors, and not at all by the appellee. This error is not cured by a special verdict, such as this is, however it might have been considered after a general verdict.
    Washington for the appellee.
    As to the first point, Mr. bee’s concessions respecting the motives which induced the legislature to pass the law in question, will warrant me in saying, that either the case before the court was not intended to be affected by the scale, or if it were, that it is also within the operation of the Sth clause. For surely, if the inconvenience and injustice, which were intended to be prevented, be as general as Mr. Lee admits, the legislature could never be so unjust as to provide a partial remedy, to fit the case of a particular class of men only. Whether this case be within the spirit, or within the letter of the law, I submit to the court upon the following considerations : 1st, the spirit of the law. During the existence of paper money, it was well understood by all men, that the nominal rise of property was produced by the fall in the value of the circulating currency. The confidence of one class of men in the public assurances, and the want of it in another, begot innumerable speculations founded upon this diversity in the sentiments of men; and therefore, in all temporary contracts, the duration of which was limited, and which might be complied with whilst paper money circulated, the debtor calculated upon further depreciation, and the creditor upon the appreciation of the money before the time of performance should arrive. Consequently, paper money was with both, the standard by which they estimated their expected gain. But when the legislature put an end *to this standard, justice compelled them to provide some other, by which to adjust such contracts. But in continuing contracts like the present, which from their nature were to extend far beyond the possible existence of depreciated paper currency and which could never be fulfilled, the parties would naturally look beyond this period, and of course make some thing more permanent in its value, than depreciated money, the standard by which to estimate the property contracted for. They could never conjecture, that the legislature would at a future period pass a law for scaling such debts, nor indeed any other, and of course would provide for themselves a rule which would be just, whatever might be the fate of paper money. This being the difference between temporary and petpetual contracts, that is, one, which might, the other which could not be fulfilled whilst paper money circulated, it follows, that since the latter never could require legislative interposition, so that interposition never would be exerted. The case put by Mr. Lee, of a debt payable by installments, is that of a temporary contract, and tho’ possibly it might extend beyond the period, and therefore it is possible, that in such a case the parties may have had paper money in view, yet it might terminate before. In this case, the fulfillment of the contract could not possibly happen before, and therefore paper money could not have been contemplated by the parties. — Again, the act declares, that where payments are made, in satisfaction of such debts or contracts, according to the reduced value, the payer shall be for ever discharged of and from such debts or contracts; which can never be construed to extend to contracts, incapable of being discharged so long as time shall last. If then this case be not within the spirit, I submit it 2dly, whether it be within the strict letter of the law. The act speaks of “debts and contracts now remaining due and unfulfilled, or which may hereafter become due. ” Now this may well apply to common debts, payable either at one, or at different periods, for they are literally debts, immediately that the contracts are made, tho’ to be discharged at a future day. But a rent, is not a debt until the time of payment arrives, insomuch, that if the lease by any means expire before the rent become due, the rent for the last year could riot at common law be demanded, because it being a retribution made by the tenant out of the profits of the thing leased, unless he have the full enjoyment thereof, he is not bound to make the retribution. The act therefore seems literally to apply to debts due, or to become due.
    ^dly, If this case be within the law, then I contend with confidence that it is within the letter, as well as the spirit, of the 5th clause. The words are general enough to comprehend it, and surely neither reason nor common justice can warrant an idea, that the legislature would apply a partial remedy to a general mischief, and permit one class of men to suffer, who struggled equally in the general clause, and who were equally injured, with the other, by the delusion created by paper money.
    It is insisted 3dly, That the mode of decision in this case was improper. The words of the law expressly give to the court, the power to render such a judgment as the principles of equity require, if they be satisfied, that the circumstances of the case would render the general rule unjust. If the court are to decide this question, upon the circumstances of each case, the court, must necessarily examine the witnesses, and any other testimony produced to establish the facts upon which this decision is to be given. It is perhaps immaterial, whether this be done, pending the trial, or after verdict; tho’ I rather think it most proper after verdict, because until the jurj’ have found whether any thing, and what is due, it would be unnecessary, if not improper, for the court to decide the other point. But it is contended, that the admission of parol testimony i'n this case was improper. I cannot admit the position either upon common law principles, or upon the construction of this law. As to the first,- the rule is, that parol evidence majr be admitted to explain doubtful expressions in a written agreement, though not to contradict plain expressions. How the rent in this case is made payable in current money. But the question is, what sort of money was meant? For specie was current, tho’ not as plentiful in 1779, as paper money. Evidence was resorted to, and it appeared to the satisfaction of the District Court, that specie was the sort of current money intended. Proof of the value of property in 1779, and at this day, was probably the evidence upon which this conclusion was formed. But however this may be upon the common rules of evidence, the act warrants such proof, since the court, in all cases where there are circumstances to authorize a departure from the scale, are to decide upon equitable principles, which they could not do, if prevented from hearing testimony to prove those circumstances.
    It is then objected, that this court should possess the same means of judging, which the District Court had. I admit it; and since the judgment of that court is in our favor, and every thing transacted in a court of justice is presumed to be rightly *done, till the contrary appears, this court must affirm the judgment. The appellant’s counsel thought it necessary to state in his bill of exceptions, the general weight of the testimony: why was it not as necessary to spread the whole evidence upon the record? For if he meant to impeach the judgment, he would have done do, or summoned the witnesses to attend this court.
    As to the objection respecting the variance, it is easily answered. The deed is no part of the record, oyer of it not having been taken; so that this court cannot say there is a variance between the declaration and the proof. If the deed actually produced in evidence, was different from that declared upon, the appellant should have excepted to the deed going in evidence to the jury, and spread it upon the record, so as to enable this court judicially to notice the variance.
    The court will presume, after this verdict, that sufficient, and proper evidence was produced to the jury, or else that they would not have found that the defendant had not performed his covenants, and was indebted in a particular sum for rent arrear. As to this point the verdict is general, and carries with it all the presumption in its favor, which arises out of general verdicts. The jury doubting upon a single point of law, the court are only to settle that doubt.
    Marshall on the same side. In the exposition of a statute, we should attend to the mischief meant to be prevented; and the remedy should be made commensurate with it: it should never be extended beyond the mischief, unless the expressions made use of, are so strong, as to render such a construction absolutely necessary. The difference which has been stated between temporary and perpetual contracts is a striking one. In the former, the parties calculated the value of paper monejr at the day of making the contract, as well as the probable value of it, on the day of payment. If it continued to depreciate more rapidly than was expected, the debtor gained; otherwise he lost. The legislature put an end to the delusion; and rendered a performance of the contract impossible, by taking out of circulation that medium, upon which both parties calculated; and of course,- it became necessary to provide a remedy to the evil, which the situation of this country had rendered inevitable. But in contracts, which, from their nature were calculated to continue long beyond the time when depreciated paper money could exist, or could furnish a standard by which to estimate the value of propert3T, the parties would naturally look beyond that time for a standard, by which to estimate the present value of property, *and would therefore make specie that standard. In the first case then, there existed a mischief, and the law is satisfied, by applying the remedy to that case, in the latter, no such mischief could happen, and therefore there was no necessity to provide a remedy. It is a strained, rather than a. necessary construction to extend the law to such a case.
    Second point. It is contended, that the benefit of the Sth clause must be confined to debtors. The words of a law must be express and clear beyond doubt, which can warrant a construction so manifestly at variance with the fundamental principles of justice. On the contrary, the words are so general, that nothing could justify an exception, but to prevent the gross partiality, which the construction on the other side tends to produce. It is said, that the two cases, which are specially provided for, point to the benefit of the debtors only. I do not think that the first case is intended to benefit the debtors, since the creditor who would, without this provision, have been obliged to accept of the identical money tendered and refused, is to receive in lieu thereof, an equitable payment. Tender and refusal are technical words, and will be construed to mean a legal tender, and not a mere offer to pay. But I rely upon the latter part of the Sth clause, to prove, that creditors were as much the objects of justice with the legislature as the debtors. Suppose the clause in question had been left out of the law, then I think it clear, that a judgment rendered within the period during which the scale operates, (being undeniably a debt) would also have been scaled.' But the court, by this clause, are to fix at what depreciation the damages are to bo paid, having regard to the original injury or contract, which by referring to a period antecedent to the judgment, must operate against the debtor. If then, in the latter branch of the clause, creditors were intended to be benefited, upon what principle can it be said, that they were intended to be excluded in the former part of it. Again; in the former part of the clause, (let it be, that the two specified cases are in favor of debtors only,) what can the words which follow mean? .Namely, “in either case it shall be lawful for the court to award such judgment as to them shall appear just and equitable. ” I might with more propriety contend, that the general part of the section, viz: other circumstances &c. relate exclusively to creditors, if the former part related to debtors.
    As to the propriety of admitting parol testimony, it is to be remarked, that in the latter branch of the 5th clause, this sort *of testimony is clearly to be heard and decided upon by the court, without bringing it before them by special pleading, and why is it to be excluded in the former part of the clause? But it is contended, that by our construction, there would be no general rule at all. In ordinary cases, men juay settle their differences by referring to the scale, without the necessity of a suit, and this extraordinary remedy is provided only for extraordinary cases.
    As to the objection, that all the evidence which was laid before the District Court, should appear before this, it is be observed that the bill of exceptions renders it unnecessary; for it admits as does also the judgment of the court, that there were circumstances proved to the court sufficient to except this case from the general rule, and the only objection relied upon, is the impropriety of the court’s hearing and deciding upon such testimony; so that, if we be right in contending- that the court below were authorised to hear parol evidence, there is an end of this question. But if it should be determined, that the evidence ought to have been spread upon the record by the plaintiff, the court will then send back the cause for that purpose: since in cases like this, (as in appeals from decisions respecting mills, wills and roads,) the practice as to this subject remains yet unsettled.
    Dee in reply.
    If the act of Assembly does not apply to cases of rents which have j become due since 1781, it does not apply to ' antecedent rents; and if this action had been brought for the rent due in 1780, could it have been contended that it should not be scaled? For it seems to be admitted, that this would have been a debt due when the law passed, and of course, literally within it. And if such a rent would have been subject to the scale, the rents which afterwards became due were, because the law is general, and I know no rule by which to limit its operation. It is said, that the 5th clause forms an exception, only in extraordinary cases. But I ask, how are these to be distinguished from ordinary cases, until they are all brought before the court and examined? So that the consequence would be, what I before stated; that the law forms no general rule at all, but is a mere nullity, if we apply it to creditors as well as debtors.
    As to the argument, that this is no debt till it become due, it is surely as much a debt before the time of payment, as where money is payable on a precedent condition, which, it is not contended, would not be within this law.
    I differ very widely from Mr. Marshall in the construction of the last branch of the 5th section. It seems intended exclusively *for debtors; for if a judgment had been rendered for damages before 1781, execution might have issued for the nominal amount against the debtor, who would have been without remedy (unless perhaps in equity,) but for this provision in his favor, authorising the court, on motion of the debtor, to adjust the damages, which ought to be paid in specie.
    The Court took time to consider, and af-terwards mentioned to the bar a doubt, which had occurred as to the plaintiff’s title, which they desired might be argued. It was, that only three of the executors appear to have executed the lease.
    Dee. The testator devises the land in question to the appellee, and the executors have a mere power uncoupled with an interest: and the law is well settled, that in such a case all the executors must join in executing the power. The power is given to the executors not in their capacity as executors, in which case perhaps those only who qualified might execute it, but it is a. confidential trust reposed in them by name, because he speaks of them as his executors thereafter named, and it is therefore the same, as if he had given the power to those four persons, (naming them,) without stil-ing them his executors.
    The deed therefore is void, and of course it cannot be the foundation of an action. The court cannot presume the other executor to be dead. He cited Pow. on Dev. 292 — 294. Co. Dittl. 446.
    Washington. I shall contend 1st, That it was not necessary for all the executors to join in the deed. 2dly, If it were necessary, that it appears judicially to the court, that all of them did join. 3dly, If both points be against me, yet that we are entitled to recover.
    1st, There is an obvious distinction, between a power given to executors in their official capacities, and one which is confined to them as individuals. In the former, if all the executors do not qualify, still those who do, answer the description, and being executors, may as such, execute the power. But if the power be given to A, B and C, who are also named executors, A and B cannot act, because the confidence was not placed in them unless united with the other executor. Now the devise in this case is of the former sort, that is, to his executors, whose names are afterwards mentioned, and the court will not presume that more qualified than have executed the deed, unless the contrary appear.
    But 2dly, the court must take notice, that all the four joined in the deed. The declaration states it expressly. The defendants without demanding oyer, so as to enable the court to take advantage *of the variance, if it existed, plead, that they have performed the covenants contained in the deed declared upon. On the trial, no variance is discovered, or excepted to, and the jury find, that the defendants have not performed the covenants, but that the plaintiff has sustained damages by the breach of them, submitting to the court a single point of law, which is not that now under debate. As to every material fact in the cause, this is a general verdict, and every thing necessary to induce such a finding, without the proving of which it ought not to have been found, will be presumed. This court therefore must take it, that such a deed as is declared upon was produced in evidence to the jury, and tho’ a different one appears in the record, yet it cannot be noticed as being that deed, since it is neither made a part of the record by oyer, nor by a bill of exceptions.
    3dlyr, This deed which appears in the record, and which for the sake of argument may be considered as that declared upon, is executed by the appellants, who grant a rent — charge to the appellee. The declaration states, that the appellants entered by virtue thereof, and were and still are seised and possessed. The jury have found in favor of the plaintiff. This fact then must be considered as established, that the appellants have enjoyed the land ever since the conveyance to them. They are therefore estopped by their deed, to say, that the grantors had no right to convey, but, are bound to make the stipulated retribution during the'period that they have enjoyed the possession, whatever latent right the appellee may have to recover the possession on account of a defect in the conveyance. When the appellee does this, then and not before his right to rent will cease.
    
      
      Forthcosning* Bonds — Motion on- Non Est Factum— jj Discretion of Court. —Where non est fact am is pleaded to a motion on a forthcoming bond, a court may render judgment without the intervention of a jury; or they may impanel a jury to try the issue, at their discretion. Burke v. Bevy, t Band. 1, citing the principal case at page 2. See monographic note on “Statutory Bonds” appended to Goolsby v. Strother, 21 Gratt. 107. I
    
    
      
      Rents — Scale of Depreciation. — On this question, the principal case is cited in Bearing v. Rucker. 18 Gratt. 448; Meredith v. Salmon, 21 Gratt. 774. See also, Bogle v. Vowles, 1 Call 244; Skipwith v. Clinch, 2 Call 253; Com. v. Beaumarchais. 3 Call 136.
      Same-Damages — Interest.—in Cooke v. Wise, 3 Hen. & M. 487, the principal case is cited as authority for the proposition that interest is not recoverable, by way of damages in an action of debt for rent arrears.
    
    
      
      The second section of tlie law Is follows; “And whereas the good people of this state will labour under many inconveniences for want of some rule, whereby to settle and adjust the payment of debts and contracts entered into and made between the first day of January, one thousand seven hundred and seventy-seven, and the first day of January, one thousand seven hundred and eighty-two. unless some rule shall be by law established for liquidating* and adjusting the same so as to do justice as well to the debtors as to the creditors. Be it, therefore, enacted by the General Assembly, that from and after the passing of this Act. all debts and contracts entered into or made iuthe current money of this State, or of the United States, excepting, atall times, contracts entered into for gold and silver coin, tobacco. or any other specific property, within the period aforesaid, now remaining due and unfulfilled, or which may become due at any future day or days, for the payfnent of any sum or sums of money, shall be liquidated, settled, and adjusted, agreeably to a scale of depreciation herein after mentioned and contained, that is to say, by reducing the amount of all such debts and contracts to the true value in specie at the days or times the same were incurred or entered into, and upon payment of said value so •found in specie, or other money equivalent thereto, the debtors or contractors shall be for ever discharged of and from the said debts or contracts, any law, custom, or usage to the contrary in any wise notwithstanding. Provided always, nevertheless, That in all cases where actual payments have been made by any person or persons, of any sum or sums of the aforesaid paper currency, at any time or times, either to the full amount, or in part payment of any debt, contract, or obligation whatsoever, the party, paying the same, or upon whose account such sum or sums have been actually paid, shall have full credit for the nominal amount of such payments, and such payments shall not be reduced, any thing in this act, or any other act or acts, to the contrary in any manner notwithstanding.”
      ” V. And be it enacted, That where a suit shall be brought for the recovery of a debt, and it shall appear that the value thereof hath been tendered and refused, or where it shall appear that the non-payment thereof is 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 according 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. And where any verdict hath been given for damages, between the first day of January, one thousand seven hundred and seventy-seven, and the first day of January, one thousand seven hundred and eighty-two, and the judgment remains unsatisfied, it shall be lawful for the several Courts within this Commonwealth, in a summary way, by motion to them made, either before any execution issues, Or at the return day of such execution, to fix, settle, and direct at what depreciation the said damages shall be discharged, having regard to the original injury or contract on which the damages are founded, and any other proof or circumstances that the nature of the case will admit. — Note in Orginal Edition.
    
   The PRESIDENT.

The first point which merits our attention, is the objection to the plaintiff’s title, to which two sufficient answers are given, 1st, The non-execution of the deed by the fourth executor, does not appear judicially to the court. The declaration states, that all the executors made the deed. The plea (if it do not admit the fact,) does not deny it, and the verdict which as to this point is to be considered as a general one, confirms it; nor can we consider this fact as being contradicted by the deed which appears in the record. 2dly, The declaration charges enjoyment of the property by the appellants, during the term for which the rent is claimed, which is sufficient to maintain the action, without deciding how far the doctrine of estopples applies to the case.

We ccme next to the merits. The 1st question is, if this contract for rent be subject to be scaled at all, under the 2d ^section of the act of 1781: and if it be, then, 2dly, whether it be within the 5th section of that law, so as to warrant the court in adjusting it upon equitable principles. 3dly, Whether the mode of adjustment be a proper and legal one.

1st, It may be premised, that the law in question, tho’ rendered necessary by the peculiar situation of this country, at that time, was certainly retrospective in its operation, and the subject was of an extremely delicate nature.

The objection is, that the act meant only to respect temporary contracts, which might probably be fulfilled during the existence of paper money, and which the parties could not contemplate to continue forever: that of course, the legislature did not mean to scale rents payable annually, and for an interminable course of time, when even the remembrance of paper money might be retained. There is certainly considerable weight in the argument. On the other side it is contended with much strength, that the legislature in fixing the scale at the time of the contract, and not at the time or times of future payments, seem to have supposed, that the price was fixed by the idea, which the parties then entertained of the relative value of paper to specie. To govern our enquiries upon this subject by a loose comparison of the rent, with the thing for which it is to be paid, would prove quite unsatisfactory — £78 for three quarters of an acre of naked ground, may appear as high in specie, as that sum in paper money, reduced by the scale to A3: 10, is unreasonably low. Our safest and only guide is to pursue the words of the law, which plainly include this case, being a contract for payment of current money at future days. The act is general, and not limited as to portions of time, nor can the court draw a line between a contract for payment at the end of two days or of twenty years or more. The act excepts the cases of contracts for gold or silver coin, tobacco, or other specific property, and if it be true, that an exception proves the rule, we must decide that all other contracts are within the law. The objection that one payment would discharge the whole contract, was well answered by the appellant’s counsel, when he observed, that the discharge, was meant to be coextensive with the payment only, and not to effect demands becoming due at future days, by the same contracts.

2dly, Although the second clause has established a general rule for adjusting contracts, where no particular circumstances intervene, yet the 5th section has allowed the equitable interposition of courts, in cases of particular hardship as, *lst, Where it shall appear that the value of the debt hath been tendered and refused.

2dly, Where it shall appear that the nonpayment is owing to the creditor. Or 3dly, where other circumstances occur which, in the opinion of the court before whom the cause is brought to issue, would render a determination according to the scale unjust. In either case, the law authorises the court to award such judgment, as to them shall appear just and equitable.

It is objected 1st, that the application for this equitable interposition of the court, can come from the debtors only; that the clause under consideration was intended exclusively for their benefit, and not for that of the creditors, and that this was so decided in the General Court. I do not know the cases alluded to, but am persuaded they must have arisen from one of the two branches of the clause, which are clearly intended for the benefit of debtors only; for it would seem strange for any court to determine under the 3d branch of the clause, if circumstances appear which would render the application of the general rule unjust to the creditor, that the court were not at libertj' to give a just and equitable judgment for him, as well as for the debtor, in a similar situation. Such partiality cannot fairly be imputed to the legislature, and it would require strong words to induce such a construction. In this law there is not the slightest ground for it.

Another objection contended for is, that this clause, if construed to apply to creditors, as well as to debtors, would render the second section a mere nullity, and would entirely destroy the effect of the general rule, by leaving the whole subject at large, and to depend upon the various opinions of the different courts. If this would be the case, are the court at liberty to reject a positive law, because its effects may be inconvenient? But how does this differ from the common case of exceptions from a general law? The latter is to prevail in all general contracts, unattended by any particular circumstances, and is to be departed from only when such circumstances occur. Again ; does it not fall within the general system of jurisprudence, which although it fixes rules of decision governing courts of law, allows a departure from them in equity, upon circumstances of fraud or accident ; yet different chancellors entertain different opinions as to the application of those circumstances, and courts of law differ daily in the construction of statutes, deeds and wills. So likewise, juries frequently, in the ‘same cause, and on the same evidence, not to say on the same point, in different courts, give contrary verdicts. Yet this does not furnish a sufficient reason for restraining the different courts, and juries from proceeding to trjr all cases before them.

Upon the whole, we must decide, that the District Court had a power, under this clause, to enquire into the circumstances of this contract, and from a view of them, to determine whether an adherence to the scale in this case would be unjust, either as to the plaintiff, or as to the defendant, and to substitute such other rule, as to them might seem more just and equitable.

But 3dly, How are those circumstances to be brought before the court, and to be decided upon? This is a question of some difficulty.

The 1st method is by a special verdict, stating the facts and circumstances, and leaving it to the court to decide upon them, whether ’the scale should be applied, and if so, whether by the legal rule, or by any other? This seems to be the most proper method as complying strictly with the words of the law, and according with the ordinary modes of trial. Indeed in this case, which is not an action of debt for rent certain, but of covenant for damages to be ascertained by the jury, the jury might upon evidence of the intention of the parties, encrease, or diminish the damages, and these they might find in specie, and so determine the question by a general verdict.

Another method would be, for the court to hear the evidence of those circumstances, on the trial, and to instruct the jury as to the point of scaling, subject to the controul of the court as in other cases, in setting aside the verdict, if their opinion be disregarded ; or perhaps, if the evidence be heard at the trial, and a general verdict given, the words of the law might justify the court in entering a judgment for a sum different from that found by the jury, assigning as, a reason for this departure, that circumstances required a deviation from the legal scale, and the adoption of another for the purposes of justice. But in either case, it would be the business of the party who-is dissatisfied with the opinion of the court, to state the evidence in a bill of exceptions, that so the question might properly be brought before a Superior Court. Whether this mode, or that by way of special verdict, be adopted, the influential circumstances may be proved by parol evidence, and the parties, as to those, are not confined by the written contract. If it were otherwise, the clause would be vain and nugatory; since I cannot conceive, *what circumstances could appear in the contract itself, to induce a departure from the scale, unless the payment is stipulated to be made in specie, or in some specific property, which would at once take the case out of the law altogether.

The scale, it is to be observed, was former subsequent to the destruction of paper money, and on conjecture only; and that drawn from the ideas of mercantile men, not of the bulk of society. The contracts of men should be governed by the comparative value of paper to specie, as they understood it when those contracts were entered into y and if that be more, or less than the rate at which the scale afterwards settled it, the latter ought not to be a rule for them. Circumstances therefore tending to illucidate their ideas upon this subject, collected from their expressions in the treaty, the general opinion of the parties, and of others in the neighborhood at the time, and such like, seem to be what the law contemplates, and' can only be collected from parol testimony. It is loose indeed; but it rests with the judges as in other cases of evidence, to say whether it produces conviction on their minds or not.

The objection therefore is not to the court’s living (in this case) admitted parol proof of the circumstances, but the doubt arises as to the time and manner of that admission. Ror neither of the modes, before stated as proper, have been ' pursued ; but one wholly new, and in my mind ir-reconcileable with every idea of propriety. A jury are sworn, .who find a verdict for the plaintiff, subject to the opinion of the court, whether the money ought to be scaled, and in what manner, under the act of Assembty, without stating a single” fact, or circumstance, to enable the court to decide upon the question. If the court were right in proceeding to judgment on this verdict, they were bound to decide as the case appeared upon the contract itself. And if they judged it to be within the second section, which they appear to have done, they should have scaled it, since no circumstances were disclosed to shew the legal scale to be unjust. Instead of this, after deciding that the contract was within the law, they examine witnesses, and upon their testimony, enter judgment for the whole sum in specie, saying “that it appeared the rent was expected to be paid in specie.”-

This, it is contended, is warranted by the law, which gives-to the court, the power of hearing, and of judging of the circumstances, exclusive of the jury, and that at the time of entering their judgment.

*But 1st, I doubt whether the act does any more than give the court jurisdiction over the enquiry, and whether the trial is not to proceed as in ordinary cases, in which the jury, if they please, may decide. Ror 1st, the words are, “the court before whom the cause is brought to issue” which are proper words to give jurisdiction. 2dly, A jurjr must be, and was sworn to try the issue, and surely, that was the time to bring forward the evidence as to this collateral point, for which both parties ought to be prepared. 3dly, The constitution declares, “that the trial by jury is preferable to all others, and ought to be held sacred.” To go no farther, it may be affirmed, that this mode of trial is never to be taken away by implication, or without positive words in an act of Assembly. Raws for this purpose sometimes give the court an express power to proceed, without the solemnity of a jury; most usually to proceed upon motion in a summary way, by which, the same thing is understood. Of this, there is an instance in this clause, where a power is given to the courts to regulate judgments entered up during the existence of paper money. The different expressions in that, and the part under consideration, operate strongly against the exclusion of the jury from a part in this decision, and against the taking of it out of the ordinary mode of trial.

But 2dly, Suppose the court have the exclusive power 'of decision, surely it must come before them in a regular manner, and at a proper time; that is to say, by way of direction to the jury in case a general verdict be found, or by a judgment given upon a special verdict: or the point might be reserved on a proper state of facts, entered upon the record: none of which have been observed in this case.

I said, that if the court could give judgment on this verdict, it should have been for the money legally reduced, since the contract was within the law, and no circumstances are disclosed to take the case out of the general rule. And strictly speaking, such judgment might perhaps be proper, since enough is found to enable the court to decide upon the face of the contract; and it would seem to be no good reason for awarding a venire facias de novo, that such circumstances are not stated, since it may from thence be presumed that none such were proved to the jury.

However, since the record discovers, that there are circumstances which induced the district judges, to depart from the scale, though now determined to have been improperly brought forth ; the party ought not to be precluded from the benefit of those circumstances *if disclosed in a regular wajr, and the justice of the case will be,best attained, by awarding a venire facias de novo.

Judgment reversed, and a new trial directed.  