Page:United States Reports, Volume 1.djvu/269

258 

1788.

continental dollar fhould be equal to gold and filver ; and the money, being a legal tender when lent, the Defendant may have paid a fpecie debt with it. Nor can a queftion of ufury be confidered in this action ; for, the Act of Affembly does not make the contract void on that account, as the Engliʃh ftatute does, but only inflicts a forfeiture, equivalent to the money or other article lent, which muft be recovered in another fuit. In the cafe of Lee vs. Biddis,ant. 175. this Court refufed to let in evidence to fhew what was meant by current lawƒul Money, expreffed in the contract, becaufe it would tend to contradict, not only the contract, but likewife the Act of Affembly eftablifhing the feale. Here the contract is exprefly for the payment of hard Money, and as the law only fixes a fcale for the payment of contract in continental Money, where no Tender has been made,  the Jury cannot fet afide the folemn 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, Chieƒ Juʃtice.  The Plaintiff ftates that the Defendant owe him Ł 100, and in order to prove his allegation, he produces their band, dated on the 5th of January, 1779, payable five years afterwards, that is, on the 5th of June, 1781. In anfwer to this demand, the Defendants have pleaded Payment (which in fuch cafes, is made the general iffue by a law of this State) and they have fhewn in fupport on their plea, that the bond in queftion was given in confideration of Ł500 of continental dollars for one in fpecie. Upon thefe circumftances it is to be determined, how much, if any things, the Plaintiff ought to recover in the prefent action.

In cafes for which the pofitive law has clearly and exprefly provided, it is the duty of Courts and Juries to be governed in their decifions, by the rule that is there prefcribed ; for Courts of Chancery, and the general principles of equity, can never be allowed to contradict or defeat the exprefs provifions of a ftatute: And even where there is no Act of Affembly to direct us, the common law, recognized and afcertained by the adjudications of the Courts upon the fame fubject, often furnifhes a guide to which we are bound to yield attention and obedience ; for, the maxim is certainly juft, that it is better the law fhould be determine and fixed, although it were originally erroneous, than that it fhould be precarious and fluctuating, according to the different talents and difpofitions of the Judges, who are appointed to adminifter it. But, in the prefent cafe, the pofitive law is filent; and, though many authorities in the books have been referred to, not one has been difcovered, which is ftrictly analogous to the queftion under our immediate confideration. There is, indeed, an Act of Affembly peffed n the 21st of June, 1781, 2 State Laws  494. the 5th fection of which feems to relate, in fome degree, to the prefent controverfy, when it enacts, that “ all debts ″ &c. granted and contracted for by any deed, will &c. fince the “ 1ft day of January, 1777, which were expreffed to be paid and ‘‘ difcharged