and any other testimony produced to estab- | carries with it all the presumption in its lish 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 jury 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 in 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 may be admitted to explain doubtful expressions in a written agreement, though not to contradict plain expressions. Now 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 circum stances. 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 347 *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 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 money 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 calcu lated; 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 property, the parties would naturally look beyond that time for a standard, by which to estimate the present value of 348 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 5th 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 5th 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, 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. that a judgment rendered within the period | law is general, and I know no rule by which during which the scale operates, (being to limit its operation. It is said, that the undeniably a debt) would also have been 5th clause forms an exception, only in exscaled. But the court, by this clause, are traordinary cases. But I ask, how are to fix at what depreciation the damages are these to be distinguished from ordinary to be paid, having regard to the original cases, until they are all brought before the injury or contract, which by referring to a court and examined? So that the conseperiod antecedent to the judgment, must quence would be, what I before stated; that operate against the debtor. If then, in the the law forms no general rule at all, but is latter branch of the clause, creditors were a mere nullity, if we apply it to creditors as intended to be benefited, upon what princi- well as debtors. ple 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 349 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 may settle their differences by referring to the scale, without the necessity of a suit, and this extraordinary remedy is provided only for extraordinary cases. 350 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 afterwards 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. 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 stiling them his executors. Lee. 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 As to the objection, that all the evidence such a case all the executors must join in which was laid before the District Court, executing the power. The power is given should appear before this, it is be observed to the executors not in their capacity as that the bill of exceptions renders it unnec-executors, in which case perhaps those only essary; 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 The deed therefore is void, and of course were authorised to hear parol evidence, there it cannot be the foundation of an action. is an end of this question. But if it should, The court cannot presume the other execube determined, that the evidence ought to tor to be dead. He cited Pow. on Dev. have been spread upon the record by the 292-294. Co. Littl. 446. 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. Lee in reply. If the act of Assembly does not apply to cases of rents which have 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 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 claimed, which is sufficient to maintain the 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 en351 able 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. action, without deciding how far the doc- 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, 3dly, This deed which appears in the rec- that the price was fixed by the idea, which ord, and which for the sake of argument the parties then entertained of the relative may be considered as that declared upon, is value of paper to specie. To govern our executed by the appellants, who grant a enquiries upon this subject by a loose comrent-charge to the appellee. The decla-parison of the rent, with the thing for ration states, that the appellants entered which it is to be paid, would prove quite by virtue thereof, and were and still unsatisfactory -£78 for three quarters of 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. an acre of naked ground, may appear as high in specie, as that sum in paper money, reduced by the scale to £3: 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. 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 en- 353 joyment of the property by the appellants, during the term for which the rent is and 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, *1st, Where it shall appear that the value of the debt hath been tendered 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 liberty 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 fre354 quently, 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 try 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 to the plaintiff, or as to the defendant, as 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, 355 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; 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. |clusive power of decision, surely it must It is loose indeed; but it rests with the come before them in a regular manner, and judges as in other cases of evidence, to say at a proper time; that is to say, by way of whether it produces conviction on their direction to the jury in case a general verminds or not. dict 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. The objection therefore is not to the court's having (in this case) admitted parol proof of the circumstances, but the doubt arises as to the time and manner of that admission. For neither of the modes, before stated as proper, have been pursued; but one wholly new, and in my mind irreconcileable 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 Assembly, 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." I said, that if the court could give judg ment 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 357 those circumstances *if disclosed in a regular way, and the justice of the case will be best attained, by awarding a venire facias de novo. Judgment reversed, and a new trial directed. October Term, 1794. Bills of Exception-Effect as a Demurrer to Evidence. *— 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. 356 *But 1st, I doubt whether the act Wroe v. Washington, Butler and Nevison. 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. For 1st, the words are, "the court before whom the cause is brought to issue" which are proper words to give jurisdiction. 2dly, A jury 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. Laws 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 *Bills of Exception--Effect as a Demurrer to Evidence. --On this question the principal case is cited and approved in foot-note to Keel v. Herbert, 1 Wash. 203; Smith v. Segar, 3 Hen. & M. 397: Lovell v. Arnold. 2 Munf. 176: Hollingsworths v. Dunbar, 5 Munf. 199: Brooke v. Young, 3 Rand. 116; C. & O. R. Co. v. Sparrow, 98 Va. 632, 37 S. E. Rep. 302. Demurrer to Evidence-Joinder.-In Green v. Buck ner. 6 Leigh 83, it is said: "There was no reason why the defendants should not have been compelled to join in the demurrer to evidence. The evidence demurred to, was not plainly against the demurrant. and therefore does not come within the influence of the decisions of Thweat v. Finch, 1 Wash. 217, Wroe v. Washington, 1 Wash. 357, and Dunbar v. Beale, 5 Munf. 24. The evidence, though parol, was not loose and indeterminate, but explicit, and admitted of no variance. It was therefore, within the rule laid down by JUDGE ROANE, in Hyers v. Wood, 2 Call 574.” The principal case is cited on this question in footnote to Trout v. Va. & Tenn. R. Co., 23 Gratt. 619. See ex-monographic notes on "Bills of Exception" appended |