5 Ala. 475 | Ala. | 1843
One question which it appears was intended to be presented is not raised upon the record. It appears from the declaration that the instrument sued on, is a writing obligatory. The plea appears to have been designed to question this, but as the instrument is not set out on oyer, it is impossible for this court to say whether it is a bond or simple Contract; this point therefore, is not in a condition to be considéred in this court.
The other question is, whether debt will lie upon a bond pro-missing to pay “ one thousand dollars in current bank notes.”
There has been some contrariety of decision as to the legal effect of a note payable in the notes of chartered banks. In New York, it has been held that such a note -is negotiable. [Keith v. Jones, 9 Johns. Rep. 120; Judah v. Harris, 19 ib. 144.] In Ohio, South Carolina and Pennsylvania, a different doctrine prevails. [McCormick v. Trotter, 10 S. & R. 94; Linge v. Kohne. 1 Mc-Cord, 115; McClain v. Nesbit, 2 Nott & McCord, 519.]
So also in Kentucky, it has been held that such a note will not sustain an action of debt. [Campbell v. Wister, 1 Litt. Rep. 30.]
In this State, at an early period of this court, it was held that
It has been sometimes said, that bank notes are quasi money, but we are painfully admonished at the present time, that bank notes have but few of the attributes of coin; being unstable and fluctuating in their value, they cannot, in any just sense, be considered money, and therefore, upon such a note an action of debt cannot be maintained. The measure of damages for a breach of the contract not being the sum in numero, which the obligation calls for, but the value of the bank notes in coin at the time the payment is to be made.
Let the judgment be affirmed.