i

い

may be paid

payment to

12 Fed Rup

able in money aution's

THE ST. STEPHEN BRANCH RAILWAY COMPANY v.

Anse to ould bontourgy dicia. BLACK.

IN THE SUPREME COURT, NEW BRUNSWICK, JUNE 21, 1870.

[Reported in 2 Hannay, 139.]

THIS was an action on the following promissory note: "$371.00.

ST. STEPHEN, Aug. 27, 1867.

"One year from date, for value received, I promise to pay to my own order, at the St. Stephen's Bank, three hundred and seventy-one dollars, with interest, payable in U. S. currency.

The note was indorsed by the defendant.1

"WM. F. BLACK."

At the trial before Allen, J., it was proved that the term "U. S. currency" meant the currency of the United States of America. At the time of the trial, $100 in gold was worth $1333 of this currency.

A verdict was taken for the plaintiff for $279 (the amount in the currency of this province which would produce the amount of the note and interest in United States currency), with leave to move for a nonsuit, on the ground that the writing was not a promissory note, not being for a sum certain.

Needham having obtained in Michaelmas term last a rule nisi,

Grimmer showed cause in Hilary term. The contention of the defendant that this is not a promissory note because it is to be paid in United States currency, which fluctuates in value here, and is therefore not for a sum certain, cannot be sustained. If a note is payable in money, it is immaterial in the currency of what country it is pay able. Story on Promissory Notes, 317. That rule applies to this

case.

Needham, contra. The fact of this document being payable in United States currency, which in this province fluctuates in value, prevents the plaintiff from recovering; for it is not for a sum certain, and is therefore not a promissory note. The plaintiff has declared upon it as a promissory note, which it is not, and the common counts cannot help him.

ALLEN, J., now delivered the judgment of the majority of the court.2

It is said in Chitty on Bills, 133, that it is not necessary that the money payable by a note should be that current in the place of pay

1278

ment or where the bill is drawn: it may be in the money of any country whatever. And in Story on Promissory Notes, § 17, it is said, that," provided the note be for the payment of money, it is wholly immaterial in the money or currency of what country it is made payable." Is not this note for the payment of money only? And may it not be assumed that "United States currency" means the money of the United States, and that the note is for the payment of three hundred and seventy-one dollars of the United States. The Act 58 Geo. III. c. 23, mentions the dollars of the United States, and makes them current in this province. The Act 15 Vict. c. 85, uses the term "currency," and declares it to mean the current money of this province; and the Act 23 Vict. c. 48, § 3, declares that the eagle of the United States coined after the 1st July, 1834, and of a certain weight, shall pass and be a legal tender for ten dollars, and the multiples and divisions thereof in the same proportion. This is a legislative recognition that the eagle of the United States and the divisions. thereof are the coins, or, in other words, the currency of that country. In Wharton's Law Dictionary, currency is defined to be bank-notes or other passing money issued by authority, and which are continually passing as and for coin.

FISHER, J. I have some doubts whether the note, the subject of this action, from its terms, is a promissory note; and the different acts of assembly relating to legal tender and currency have rather increased them, as they speak of the eagle of the United States, of a dollar, and of currency, but refer to the dollar as consisting of one hundred cents; and the eagle is made a legal tender for ten dollars of one hundred cents. Now, the note in question for $371 was found to be equal to $279; or, in other words, the $371 United States currency referred to in the note would only produce $279, if paid in the gold eagles of the United States or the multiples or divisions thereof. There appears to me to be a want of certainty, which I think essential to a promissory note. In order to get at the amount of the note in New Brunswick currency, it was necessary to prove the value of the greenback paper notes in circulation, which was said to be constantly varying. Per Curiam. Rule discharged.1

1 Sanger v. Stimpson, 8 Mass. 260; Black v. Ward, 27 Mich. 191, 194 (semble) vscord.

But see Thompson v. Sloan, 23 Wend. 71; infra, p. 51, note 2, s. c., contra.-ED.

JUDAH v. HARRIS.

IN THE SUPREME COURT OF JUDICATURE, NEW YORK, MAY, 1821.

[Reported in 19 Johnson, 144.]

THIS was an action of assumpsit, on a promissory note, tried at the Chenango Circuit, in June, 1820, before Mr. Chief Justice Spencer. The dial ation was against the defendant, as the third indorser of a nota made by P. Randall, dated Norwich, March 13, 1818, for $415.22, payable "at the Branch Bank of the Manhattan Company, in the village of Utica, in the bank notes current in the city of New York, for value received."

At the trial, the note was proved and read, and evidence was given as to the notice to the defendant of the non-payment, which it is unnecessary to state. The jury found a verdict for the plaintiff, subject to the opinion of the court, on a case made.

Collier, for the plaintiff. He cited Keith v. Jones; 1 Burr. Rep. 459; 1 Johns. Cases, 231; 4 Mass. Rep. 245; Chitty on Bills, 340; 12 Johns. Rep. 226, 395.

Foot, contra.

2

WOODWORTH, J., delivered the opinion of the court. The note in question was payable "in bank-notes current in the city of New York." On the argument, it was contended that this was not a negotiable promissory note, within the statute. In Keith v. Jones, it was held that a note payable in York State bills or specie was the same thing as being made payable in lawful current money of the State; for the bills mentioned mean bank paper, which is here, in conformity with common usage, regarded as cash. Lord Mansfield, in Miller v. Reid, observed "that these notes are not, like bills of exchange, mere securities or documents for debts, nor are so esteemed, but are treated as money, in the ordinary course and transactions of business, by the general consent of mankind; and on payment of them, when a receipt is required, the receipts are always given as for money, not as for securities or notes."

In Handy v. Dobbin, it was decided that bank-bills could be levied on by execution, and that they are treated, civiliter, as money. In the case cited, it did not appear what description of bills had been attached; but there can be no doubt that all current bank paper was intended by the court. The same general expressions are used in

19 Johns. Rep. 120.

1 Burr. 457.

2 Ibid.
4 12 Johns. Rep. 220.

1

The

Holmes v. Nuncaste and in Mann v. The Executors of Mann. present chancellor ɛays "that the word money may be extended to bank-notes, when they are known and approved of, and used in the market as cash."

But it is urged by the defendant's counsel that bills of New Jersey might be tendered to satisfy this note, and that they cannot be considered as money, unless their circulation be coextensive with the State.

The principle laid down in Jones v. Fales is applicable to this case: ¦ "The court must take notice, in common with the people, that banknotes derive their value, not only from the certainty, but the facility of payment; consequently, that a man in trade in Boston, holding a bill issued by a bank at a distance from Boston, can less easily obtain payment than he could if the issuing bank was near to him; and that a different facility of procuring payment may create a difference in their value." It was therefore held that the import of the words "foreign bills" was not cash, but something differing in value from cash. So, in the present case, the court will take notice that notes current in the city of New York are of cash value throughout the State, and are distinguished by those words from other bank-notes which are received at a discount, and hence it is immaterial whether the notes of banks in other States might be tendered in payment, provided they were current in the city of New York; in that case, they are considered cash equally with the current bills of this State. From authority, I cannot perceive any objection to the note in question. It would have been a note under the statute, if payable in bank-notes generally; consequently, it is valid as such, when confined to a species of bank paper of known cash value. At the trial, testimony was introduced for the purpose of showing that due diligence had not been used to charge the indorser, but it was not made a point on the argument. On looking into the case, there appears to be no ground for making that a question: we are, therefore, of opinion that the plaintiff is entitled to judgment.

1 12 Johns. Rep. 896. 34 Mass. Rep. 245.

Judgment for the plaintiff

21 Johns. Ch. Rep. 231.

Lacy v. Holbrook, 4 Ala. 88 (funds current in New York city); Carter v. Penn, 4 Ala. 140 (current money of Alabama); Swift v. Whitney, 20 Ill. 144 (currency); Phoenix Ins. Co. v. Allen, 11 Mich. 501; 13 Mich. 191, s. c. (current funds), semble; Phelps v. Town, 14 Mich. 374 (currency), semble; Mitchell v. Hewitt, 13 Miss. 361 (currency of State of Mississippi), semble; Pardee v. Fish, 60 N. Y. 265 (current bank-notes); Morris v. Edwards, 1 Oh. 80 (current bank-notes of Cincinnati); Dugan v. Campbell, 1 Oh. 47 (currency of this place); Swetland v. Creigh, 18

ROBERT SEARCY v. A. AND R. VANCE.

IN THE SUPREME COURT, TENNESSEE, MARCH, 1827.

[Reported in Martin & Yerger, 225.]

THIS was an action of debt, upon an obligation in these words: "JUNE 2d, 1824.

"On or before the first of January next, I promise to pay William Pike one hundred dollars in Tennessee money."

The defendant demurred generally to the declaration, which was Bustained by the Circuit Court. The cause was argued upon the ground that an action of debt would not lie upon an instrument of this kind.

Per Curiam. A note payable in Tennessee money is, to all legal intents, a note payable in gold or silver; for nothing but gold or silver constitutes Tennessee money. The case is different, where it is payable in Tennessee bank-notes; as in Gamble v. Hatton,' to which case this has no analogy. Judgment affirmed.1

Oh. 118 (current Ohio bank-notes); White v. Richmond, 16 Oh. 5 (current funds of Ohio); Howe v. Hartness, 11 Oh. St. 449 (currency); Fleming v. Nall, 1 Tex. 246 (current bank-notes), accord.

Mobile Bank v. Brown, 42 Ala. 108 (currency); Dillard v. Evans, 4 Ark. 175 (common currency); Lafayette Bank v. Ringel, 51 Ind. 393 (current funds); Rindskoff v. Barrett, 11 Iowa, 172 (currency); Huse v. Hamblin, 29 Iowa, 501 (currency); Campbell v. Weister, 1 Litt. 30 (current bank paper); Chambers v. George, 5 Litt. 335 (currency of Kentucky); Breckenridge v. Ralls, 4 Monr. 533 (notes receivable in bank); Farwell v. Kennett, 7 Mo. 595 (currency); Cockrill v. Kirkpatrick, 9 Mo. 688, semble (currency of Missouri); Little v. Phenix Bank, 2 Hill, 425; 7 Hill, 359, s. c. (current bank-notes of Mississippi); Warren v. Brown, 64 N. Ca. 381 (current notes of North Carolina); Johnson v. Henderson, 76 N. Ca. 227 (current funds); Gray v. Donahoe, 4 Watts, 400 (current bank-notes); Wright v. Hart, 44 Pa. 454 (current funds at Pittsburgh); Gamble v. Hatton, Peck, 130 (current bank-notes); Hicklin v. Tucker, 2 Yerg. 448 (Tennessee currency); Kirkpatrick v. McCullough, 3 Humph. 171 (current bank-notes); Whiteman v. Childress, 6 Humph. 303 (current bank-notes); Simpson v. Moulden, 3 Coldw. 429 (current bank-notes); McDonnell v. Keller, 4 Coldw. 258 (current bank-notes); Collins v. Lincoln, 11 Vt. 268 (current bills); Ford v. Mitchell, 15 Wis. 304 (currency); Platt v. Sauk Co. Bank, 17 Wis. 222 (current funds); Lindsey v. McClelland, 18 Wis. 481 (current funds); Bettis v. Weller, 30 Up. Can. Q. B. 23 (current funds of the United States), contra.

See Blood v. Northup, 1 Kans. 28 (current funds). — ED.

1 Peck's Rep. 130.

2 Graham v. Adams, 5 Ark. 261 (good current money of the State); Wilburn v. Greer, 6 Ark. 255 (Arkansas money); Burton v. Brooks, 25 Ark. 215 (greenback currency); Lampton v. Haggard, 3 Monr. 149 (Kentucky currency); McChord v. Ford, 3 Monr. 166 (current money of Kentucky); Black v. Ward, 27 Mich. 191 Canada currency); Butler v. Paine, 8 Minn. 324 (currency); Cockrill v. Kirk patrick, 9 Mo. 688 (semble), (current money of Missouri); Frank v. Wessels, 64 N. Y. 155 (paper currency); Gift v. Hall, 1 Humph. 480 (Brandon money); Ogden. Slade, 1 Tex. 13 (awful funds of United States), accord. — ED

4