This is true, and the court would certainly not feel itself at liberty to exercise on a common occasion a discretionary power, limited only by the opinion entertained of the naked justice of the case.

case.

But this appears to the court to be an extraordinary The evidence goes a great way in proving that the parties to the contract believed that the sums becoming due under it, would at no distant period be pay. able in specie only. This testimony is the more to be credited, because it is not easy to conceive any other motive for disposing of the property on the terms on which it was parted with; and still more, because such was the operation of the existing law on the contract when it was entered into. Under this impression, an impression warranted by the law of the land, a very valuable property has been conveyed away for what would have been, under the then existing law, a full consideration, but which a subsequent act of the legislature has reduced certainly to a tenth, perhaps to a twentieth of the real value of the estate disposed of.

Such a case is in the opinion of the court an extraordinary case, which is completely entitled to the extraordinary relief furnished by the act which has occasioned the mischief.

In inquiring to what extent this relief ought to be afforded, or, in the words of the law, what "judgment "will be just and equitable," the court can perceive no other guide, by which its opinion ought, in this case, to be regulated, but the real value of the property at the time it was sold. The record does not furnish satisfactory evidence of this value. It is proved that a lot not superior to that which occasioned the present contest, rented in the year 1774, for £13 5s per annum, and that other lots, perhaps not equal to it, rented in 1784, for £25 per annum. It is even proved that a small part of the very lots, about the value of which the inquiry is now to be made, rented in the year 1784; on a ground rent forever, for £25 168 per annum. These are very strong circumstances in support of the decree of the circuit court, fixing the rent at £26 per annum,

FAW

MARSTEL

LER.

FAW

V.

MARSTEL

LER.

the nominal sum mentioned in the lease.

But a ma

jority of the judges are of opinion that the value must be ascertained by a less erring standard.

Neither the value in 1774 nor in 1784, ought to re gulate the rent. The value at the date of the contract, must be the sum which in equity and justice the lessee ought to pay, and as this value is not ascertained by the testimony in the record, it ought to be found by a jury. In finding this value however, the jury ought not to be governed by the particular difficulty of obtaining gold and silver coin at the time, but their conduct ought to be regulated by the real value of the property, if a solid equivalent for specie had been made receivable in lieu thereof. On these principles the court has directed the following decree

This cause, which was abated by the death of the appellee and was revived in the name of his administrator, came on to be heard on the transcript of the record, and was fully argued by counsel. On consideration whereof, the court is of opinion that there is error in the decree of the circuit court in this, that the rents reserved in the lease in the proceedings mentioned, bearing date the 5th day of August, in the year of our Lord one thousand seven hundred and seventy-nine, and which were in arrear and unpaid, were decreed to be paid at their value according to the scale of depreciation when the same became due; and that those rents which accrued after the first of January 1782, are decreed to be paid according to the nominal sum mentioned in the lease; whereas, the annual rent reserved in the said lease, ought to be reduced to such a sum in specie, as the property conveyed, was, at the date of the contract, actually worth; to ascertain which, the evidence of the cause hot being sufficient for that purpose, an issue ought to have been directed, according to the verdict on which, if satisfactory to the court, the final decree ought to have been rendered.

This court is therefore of opinion, that the decree rendered in this cause, in the circuit court for the coun

ty of Alexandria, ought to be reversed, and it is hereby reversed and annulled; and the court proceeding to give such decree as the circuit court ought to have given, doth decree and order that an issue be directed between the parties, to be tried at the bar of the said circuit court, in order to ascertain what was the actual annual value in specie, or in other money equivalent thereto, of the half acre lot of ground which was conveyed, by the executors of John Alexander, deceased, to Abraham Faw, on the 5th day of August 1779, and that in the account between the parties, in order to a final decree, the representatives of said Phillip Marsteller be allowed a credit for the rent which has accrued and which remains unpaid, estimating the said annual rent at such sum as the verdict of a jury, to be approved of by the said circuit court, shall ascertain the half acre lot of ground before mentioned, to have been fairly worth at the date of the contract under which the same is claimed by the said Abraham Faw.

FAW

Y.

MARSTELA

LER.

OGLE v. LEE.

THIS cause came up to this court, upon a question on which the opinions of the judges of the circuit court were opposed.

It was made a question, whether this court would consider the whole case, or only the question upon which the court below divided.

The court were unanimously of opinion, that they could only consider the single question, upon which the judges below divided in opinion, but that the parties will not be precluded from bringing a writ of error, upon the final judgment below; and the whole cause will then be before the court. A court may at any time interlocutory decree.

reverse an

The case was afterwards settled by the parties.

PENNINGTON v. COXE..

THIS was a feigned issue, between Tench Coxe a citizen of the state of Pennsylvania, and Edward Pennington a citizen of the state of New-York, to try the ques

E

ΤΟΝ

PENNING- tion, whether sugar actually refined, but not sold and sent out of the manufactory, before the 1st of July 1802, is liable to any duty to t. United States, upon being sent out after that day.

V.

COXE.

the manufactory, before the 1st of July,

1802, is not liable to any duty upon be ing sent out after that day.

This question arose upon the act of Congress entitled, "An Act to repeal the Internal Taxes," passed April 6th 1802, Vol. 6, p. 58.

The declaration was upon a wager, that the United States were entitled to collect the duty, and stated the following facts. That Pennington was a refiner of sugar, within the meaning of the several acts of congress imposing a duty on refined sugars. That he had refined a quantity of sugar between the 31st of March, and the 1st of July, 1802, which, if the act for repealing the internal taxes had not been made, would have been liable to a duty, exceeding in the whole, the sum of 2500 dollars. That he did from day to day, enter in a book or paper kept for that purpose, all the sugar refined by him as aforesaid, but that he did not, on the 1st of October, 1802, render any account of the sugar which he had so refined, to any officer of the revenue, nor did he produce to any such officer (though required,) the original book or paper whercon the entries from day to day, were made as aforesaid, nor did he on the said 1st of October, nor at any time before or since, pay or secure any duties upon the said quantity of sugar so refined by him as aforesaid, during the period aforesaid; that the same was not sent out of the manufactory before the 1st of July, 1802, but that the whole had been since sent out, viz. on the 30th of September, 1802. To this declaration there was a general demurrer and joinder; and it was agreed that no advantage should be taken of want of form in the proceedings.

The judgment of the circuit court of the district of Pennsylvania, was for the plaintiff below, and the defendant brought the writ of error.

The act imposing the duty was passed, June 5th, 179, Vol. 3, p. 93, and is entitled, "An Act laying certain duties upon snuff and refined sugars."

The 2d section enacts, that from and after the 30th of September, 1794, "there be levied, collected, and paid,

upon all sugar which shall be refined within the United PENNING. "States, a duty of two cents per pound."

The 3d section directs, "that the du es aforesaid shall "be levied, collected and accounted for," by certain officers therein described.

The 5th section directs, that every refiner of sugar, shall make true and exact entry and report in writing, at the office of inspection, of every house or building, where such business shall be carried on, and every pan or boiler, together with the capacity of each; and shall also give bond in the sum of 5000 dollars, with condition that he will enter in a book or paper, to be kept for that purpose, all sugar which he shall refine, and the quantities from day to day sent out of the building, where the same shall have been refined; and shall on the first day of January, April, July and October, in each year, render a just and true account of all the refined sugar, which he shall have sent out, from the time of the last account rendered, producing and shewing therewith, the original book or paper, whereon the entries from day to day, to be made as aforesaid, have been made; " and he shall, at the time "of rendering each account, pay or secure the duties "which by this act, ought to be paid upon the refined su "gar in the said account mentioned."

By the 7th section, it is enacted, that every refiner of sugar shall, yearly, being thereunto required by an officer of inspection, make oath, that the accounts, which have been by him rendered, of the quantities of refined sugar by him sent out of the building, have been just and true.

By the 10th section, it is enacted, "that all snuff and "refined sugar, which shall have been manufactured or "made within the United States, in manner aforesaid, "after the said 30th day of September next, whereof the "duties aforesaid, have not been duly paid or secured, 66 according to the true intent and meaning of this act, "shall upon default being made in the paying or securing "of the said duties, be forfeited, and shall and may be ❝ seized as forfeited, by any officer of the inspection or "of the customs." 99

By the 11th section, the refiner has the option to pay upon rendering his account. "the duties which shall

TON
V.

COXE.