1 U.S. 257 (1788)

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U.S. Supreme Court

HOLLINGSWORTH v. OGLE, 1 U.S. 257 (1788)

1 U.S. 257 (Dall.)

Ogle et. al.

Supreme Court of Pennsylvania

April Term, 1788

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

Page 1 U.S. 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 [1 U.S. 257, 259]

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