This was an action of debt brought upon a bond, dated the 5th
June, 1779; the penalty of the bond being in 'L200 hard Money
computing half Joes at L3;' and the condition, for the payment of
'the full and just sum of L100 hard Money, or Specie, computing
half Joes at L3; on the expiration of five Years, from the date,
with lawful interest etc.' The Defendants pleaded Payment, to which
the Plaintiff replied, Non Solverunt, and issue was thereupon
joined.
It appeared at the trial, that the bond was given in
consideration of a sum of L500 Continental Currency, lent by the
Plaintiff to the Defendants in June, 1779, when the scale of
depreciation estimates that money at twenty for one.
Ingersol and Sergeant, for the Defendants, contended, that the
Plaintiff's demand was of an usurious nature, and so unreasonable,
that it ought not in equity and good conscience to be allowed. They
admitted, that the Jury could not set aside the contract of the
parties; but insisted, that they might, and in this case ought to
give only damages, according to what was just and reasonable; and
that they were not bound to find the sum expressed in the bond. 2.
Vern. 402. 121. 1 Atk. 351. 2. Kaims Princ. Eq, 70. 2 Eq. Abr. 186.
pl. 9. 2 Vern. 14. 10 Mod. 503.
Lewis, for the Plaintiff-This is an action of debt upon a bond,
and therefore the case of damages is not applicable, unless the
Jury shall think proper to give any thing beyond the penalty. There
is nothing usurious or unreasonable in the contract; for, at the
expiration of the five years, in which the bond was made payable,
if the continental money had appreciated, the Plaintiff would have
been a considerable loser. Besides, an Act of Assembly declared,
that a
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257, 258
continental dollar should be equal to gold and silver; and the
money, being a legal tender when lent, the Defendant may have paid
a specie debt with it. Nor can a question of usury be considered in
this action; for, the Act of Assembly does not make the contract
void on that account, as the English statute does, but only
inflicts a forfeiture, equivalent to the money or other article
lent, which must be recovered in another suit. In the case of Lee
vs. Biddis, ant. 175. this Court refused to let in evidence to shew
what was meant by current lawful Money, expressed in the contract,
because it would tend to contradict, not only the contract, but
likewise the Act of Assembly establishing the scale. Here the
contract is expresly for the payment of hard Money, and as the law
only fixes a scale for the payment of contracts in continental
Money, where no Tender has been made, the Jury cannot set aside the
solemn act of the parties, but ought to find a verdict generally
for the Plaintiff. 2 State Laws 7. 448. 494. 1 State Laws 120.
M'Kean, Chief Justice. The Plaintiff states that the Defendants
owe him L100, and in order to prove his allegation, he produces
their bond, dated on the 5th of January, 1779, payable five years
afterwards, that is, on the 5th of June, 1784. In answer to this
demand, the Defendants have pleaded Payment (which in such cases,
is made the general issue by a law of this State) and they have
shewn in support of their plea, that the bond in question was given
in consideration of L500 of continental paper, lent by the
Plaintiff to the Defendants, at their instance, when it was worth
no more than at the rate of twenty continental dollars for one in
specie. Upon these circumstances it is to be determined, how much,
if any thing, the Plaintiff ought to recover in the present action.
In cases for which the positive law has clearly and expresly
provided, it is the duty of Courts and Juries to be governed in
their decisions, by the rule that is there prescribed; for Courts
of Chancery, and the general principles of equity, can never be
allowed to contradict or defeat the express provisions of a
statute: And even where there is no Act of Assembly to direct us,
the common law, recognized and ascertained by the adjudications of
the Courts upon the same subject, often furnishes a guide to which
we are bound to yield attention and obedience; for, the maxim is
certainly just, that it is better the law should be determinate and
fixed, although it were originally erroneous, than that it should
be precarious and fluctuating, according to the different talents
and dispositions of the Judges, who are appointed to administer it.
But, in the present case, the positive law is silent; and, though
many authorities in the books have been refered to, not one has
been discovered, which is strictly analogous to the question under
our immediate consideration. There is, indeed, an Act of Assembly,
passed on the 21st of June, 1781, 2 State Laws 494. the 5th section
of which seems to relate, in some degree, to the present
controversy, when it enacts, that 'all debts etc. granted and
contracted for by any deed, will etc. since the 1st day of January,
1777, which were expressed to be paid and
Page 1 U.S.
257, 259
discharged in any foreign money, or in gold or silver money of
any denomination, or in bullion, or in any commodity, and which
have not since been paid and satisfied or discharged, shall be
deemed, construed and taken to be yet due and owing from debtors to
creditors, in such money or other commodity, as in the said
contracts were expressed, and the same may be sued for and
recovered in any Court etc. in so much gold or silver money as
shall be equal in value to the debt or duty, according to the
contract.' But the meaning of this section (and in the
interpretation of laws, recourse must always be had to the meaning
of the Legislature) is only this; that, where a contract had been
made for payment in specie, in foreign gold, in bullion, or in any
specific commodity, the creditor is entitled to recover according
to the stipulations of that contract. This therefore, does not
reach the present point; for, although the bond is payable in hard
money, the dispute arises upon the actual depreciation, which
rendered L500, continental money of considerably less real value,
at the time of entering into the Contract, notwithstanding the laws
of the State had declared it to be equivalent to specie, of any
denomination then circulating. If, indeed, this had been a bond for
the payment of continental money, there is no doubt that, by the
Act of Assembly just cited, only so much specie, as the L500 was
really worth, could be recovered by the Plaintiff; but it is a bond
for the payment of hard Money, in consideration of a loan of
continental Money, and hence the difficulty occurs. It is
unnecessary to review all the authorities that have been read, from
the different reports of decrees in chancery; which have, in
general, proceeded upon the ground either of fraud, of surprize, of
the suggestion of a falsehood, of the suppression of a truth, or of
the unreasonable and unconscionable nature of the contract itself.
The last of these being the only case that can be applicable to the
subject before us, our enquiry is reduced to one point, to wit,
whether the contract now litigated is so unreasonable in its
nature, at to have become iniquitous, and, therefore, ought not to
be countenanced in a Court of Justice? The arguments appear to be
strong on both sides, particularly in the two cases, which have
been opposed to each other, by the contending council. On the one
hand, where a man has borrowed, L1000 in continental money which,
before the day of payment, had unexpectedly risen seventy-fold in
value it would certainly he hard to compel him to return L70,000,
for the use of the L1000 which he received: And, on the other hand,
it is equally true, that where L500 continental money has been
loaned in consideration of a bond for L100 specie, the lender can
never claim any more than the last mentioned sum, though a change
in the public credit and circumstances, should have made the L500
continental money equal to specie, and by that means he has
sustained a loss of the difference between the two sums. It is
likewise to be considered that when the contract was entered into
between the Plaintiff and Defendants, the paper medium of the
United States was in a very fluctuating condition; and, though
Page 1 U.S.
257, 260
the event has shown the fallacy of the opinion, there were not
wanting many good and intelligent men, who strongly maintained,
that the continental money would eventually be redeemed, according
to its nominal value. This far, however, is clear, that the law, at
that time, did not acknowledge the current depreciation, so that
the Defendant might legally have satisfied any specie debt, with
the money which the Plaintiff had advanced. Nor was it then
customary to lend merely for the interest; but a practice had
prevailed of making loans upon bonds payable in dollars, or for
bills of exchange payable in France; and, although very usurious
and exhorbitant profits were thus accumulated, yet it is said (and
I believe it to be true) that there was no law that could prevent,
or suppress the mischief. Indeed, after much consideration, this
Court entertains the opinion, that there would not be anything
illegal in taking a bond for L200 of the last state emission of
bills of credit, when only L100 had been lent; for that paper-money
is only made a tender and payment of debts due to the Commonwealth,
and, in every other respect, must be considered merely as an
article of merchandize. But the case before us, is of another
nature; it is that of a bond payable in hard Money, given in
consideration of a sum lent in continental Money, which the law
then declared to be, in all cases, a good and sufficient tender and
payment. Since, therefore, we have no rule to guide us, but the
exercise of a legal discretion, it may be proper to reflect, that
it will be as inconsistent with equity to give too little, as to
give too much. If the Plaintiff's demand would amount to seventy or
a hundred fold the value of the money he advanced, it would,
perhaps, be wrong to allow it; but, whether a less, and what, sum
would be an unreasonable profit, must depend upon a consideration
of the advantage which the Defendant might have derived from the
loan, the loss which the Plaintiff might have sustained, the length
of the credit given upon the bond, and the possible insolvency of
the obligors. These circumstances certainly entitle the Plaintiff
to something more than the common interest of money; what advance a
Court of Chancery would decree, we cannot ascertain with precision;
but, it seems, that more than double the sum, has been generally
determined to be unreasonable and unconscionable. The Court, upon
the whole, are unanimously of opinion, that in an action of debt,
brought upon a bond, and where the issue is joined upon a plea of
payment, the Jury may, and ought to presume every thing to have
been paid, which ex equo et bono, in equity and good conscience,
ought not to be paid. Such is the current of the determinations in
the Court of Chancery of England; and the same principle is
recognized in the case of Moses and M'Farlan; 2 Burr. 1005. for,
though the Courts of Justice cannot alter or destroy the contract
of the parties, they may interpose to render it conformable to
reason, justice, and conscience. Rush, and Bryan, Justices,
concurred. The Jury found a verdict for the Plaintiff in the sum of
L76. 10. with six-pence costs.
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