WHARTON et al, verʃus MORRIS et al.
D
EBT upon a bond. Plea, payment, with leave to give the fpecial matter in evidence.
The cafe was this:— The plaintiffs, copartners, fold to Pleaʃants, Shore & Co. merchants in Virginia, a confiderable quantity of tobacco in March 1778, when the Pennʃyania fcale of depreciation, eftimates continental money at the rate of five for one. Articles of agreement were executed between the vendors and the purchafers, in which Pleaʃants, Shore &c. covenanted to procure Willing, Morris, and Inglis, merchants of Philadelphia, as furetics for the payment of the tobacco ; and, accordingly, a bond for that purpofe was afterwards executed by thofe gentlemen, in the penalty of Ł 12,000 on condition to be void, if Pleaʃants & Co. fhould pay the fum agreed upon (that is Ł 7 percent.) ‘‘ on the thirtieth oƒ September 1782 in lawƒul current money oƒ Pennʃylvania. ’’ It appeared that Inglis, one of the defendants, had offered to pay the value of the tobacco, at the time of the fale, with intereft ; but this was refufed by the plaintiffs ; and no payment or tender, being made upon the 30th of September 1782, they brought the prefent action upon the bond.
The evidence was brief, confifting only of the articles of agreement, the bonds, a depofition of the offer made by Inglis, and teftimony that the ufual price of tobacco, during may years preceeding the war, about 20ʃ per Cwt.
Wilcocks, Sergeant, and Lewis, for the plaintiffs, contended, that this tranfaction was a fair and lawful wager on the part of Wharton, & Co. in confidence that the continental money would recover its original value ; and that on the other hand they ran a confiderable rifque ; as , if it depreciated, they would have been bound to take it, provided it continued a legal currency. But the act which repealed the tender law deftroyed its currency ; fo that on the 30th September 1782, when the bond became due and payable, the only lawƒul current money oƒ Pennʃylvania, was coin, of gold or filver ; and that by the terms of the bond ought to be paid.
Governeur Morris, Wilʃon and Ingerʃol, for the defendants, denied that the tranfaction was founded in a wager ; and contended that the plaintiffs had fet up a hard and unconfcionable demand : for, they infifted, that the lawƒul current money, expreffed in the bond, meant what was current at the time of its execution ; and they declared the readinefs of the defendants either to pay at the rate eftablifhed by the fcale of depreciation, or according to the real value of the tobacco, with intereft from the date of the fale.
M‘KEAN, Chief Juʃtice delivered a circumftantial and learned charged to the Jury. He faid, that the want of a Court with equitable powers, like thofe of the Chancery in England, had long been felt in Pennʃylvania. The inftitution of fuch a Court, he obferved, had once been agitated her ; but the houfes of Affembly, antecedent to the revolution, fuccefsfully oppofed it ; becaufe they were apprehenfive of encreafing , by that means, the power and influence
