of certain sales.5 Neither is an order drawn by a client on his attorney, to pay a certain sum out of any moneys collected for him, a bill of exchange; nor is a receipt given by an attorney to be accountable to Thomas Witt or bearer, for securities deposited with him for collection, to be deemed a negotiable instrument." Though written in the form of a note, if the writing containing the promise show that it is payable out of a special fund, it is void as a note; as where it is drawn in the shape of a receipt for £200 in drafts, concluding with a promise to pay it to the lender with interest. And it has been held that a written agreement to pay a sum of money out of the net proceeds of ore to be mined and sold from a certain ore bed is not a promissory note. Many other

8

landlord on his tenant to pay the rents tanto of the note, but a mere mandate accruing during a specified period was of the payee, which was revoked by held not to be a bill of exchange re- the settlement, and that the defendquiring a written acceptance, al- ants were not liable on the acceptance. though it appeared on inquiry aliunde Lindsay v. Price, 33 Tex. 280. See that the rents were payable in money. also Gliddon v. McKinstry, 28 Ala. An order to pay a certain amount 408; Hamilton v. Myrick, 3 Ark. 541; on account of the drawer's share of Owen v. Lavine, 14 Ark. 389; Raiguel undue rent, and accepted by the v. Ayliff, 16 Ark. 594; Aguel v. Ellis, drawees 'when due," is not a bill of 1 McGloin (La.), 57; Harriman v. Sanexchange.. Rice v. Porter, 16 N. J. L. born, 43 N. H. 128. 440.

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5. Atkinson v. Manks, 1 Cow. Y.) 691.

7. Fisk v. Witt, 22 Pick. (Mass.) (N. 83. And see Harriman v. Sanborn, 43 N. H. 128.

An order to pay a certain sum "out of the proceeds of cattle to be sold on account of the drawer, when the same shall be received by the drawee," is not a bill of exchange, and a general acceptance by the drawee only renders him liable according to the conditions of the order. Kinney v. Lee, 10 Tex. 155. See also Curle v. Beers, 3 J. J. Marsh. (Ky.) 170; Kelly v. Bronson, 26 Minn. 359, 4 N. W. 607; Lowery v. Steward, 25 N. Y. 239, 82 Am. Dec. 346.

6. Crawford (Ohio), 453.

V. Cully, Wright

8. Williamson v. Bennett, 2 Campb. (Eng.) 418.

9. Worden v. Dodge, 4 Den. (N. Y.) 159. In this case an agreement was executed by the defendants by which they agreed to pay plaintiff or order $250, with interest, in a specified time, "out of the net proceeds after paying the costs and expenses of ore to be raised and sold from the bed on the lot this day conveyed by Edward Madden to Edwin Dodge, which bed is to be opened and the ore disposed of as soon as conveniently may be." In the trial court it was held that the plaintiff Order to pay money collected.-The could not recover without proof that owner of a note placed it in the hands the defendants had received funds of the defendants, his attorneys, for from the ore to enable them to pay, collection, and subsequently gave the or had failed to work the ore bed as plaintiff an order on the defendants they had agreed. In the absence of for the payment of a part of the this proof plaintiff was nonsuited. money to be collected, which defend- The court above held that the nonants accepted, "payable out of the first moneys collected." The client afterward compromised with the maker, and no money was ever collected. It was held that the order was not a bill of exchange, nor an assignment pro

suit was proper. That as the promise was not to pay absolutely and at all events it was not a negotiable promissory note, and hence must be recovered upon, if at all, as upon an ordinary contract.

instances might be noted indicating the application of the principles relating to the nonnegotiability of bills and notes payable out of particular funds; it will, perhaps, be sufficient to cite a number of cases in which these principles have been considered.10

a. In general. It is an essential quality, as established by foreign and American law, without exception or modification, that a negotiable promissory note or bill of exchange be payable in money only. And a bill cannot be for the delivery

or payment of merchandise, or other things in their nature susceptible of deterioration, loss, and variation in quality and value.12 The only remaining difficulty is to determine what is money. There has been a very apparent conflict of authority in the consideration of this question, especially as regards those instruments made payable in current bank notes, in currency, and in legal tender. This question is not at the present time as important as it once was, owing to the fact that existing Federal laws have so modified our financial and banking systems, that circulating bank notes are rarely, if ever, issued by State banks under the restrictions imposed and the protection afforded by State laws. It seems necessary, therefore, to only mention the cases dealing with the

Georgia.- Poole v. McCrary, 1 Ga.

319.

Massachusetts.-Jones v. Fales, 4 Mass. 245; Sanger v. Stimson, 8 Mass. 260.

Michigan.-Black v. Ward, 27 Mich. 191, 15 Am. Rep. 162.

New York.- Thompson v. Sloan, 23 Wend. 71, 35 Am. Dec. 546; Hodges v. Schuler, 22 N. Y. 114; Chrysler v. Renois, 43 N. Y. 209; Kelly v. Ferguson, 46 How. Pr. 411; Dinsmore v. Duncan, 57 N. Y. 573, 15 Am. Rep. 534.

North Carolina.- Hodges v. Clinton, 1 N. C. 76.

South Carolina.- Lange v. Kohne, 1 McCord, 115; Hamburg Bank v. Johnson, 3 Rich. 42.

Texas.- First Nat. Bank v. Greenville Nat. Bank, 84 Tex. 40, 19 S. W. 334; Hogue v. Williamson, 85 Tex. 553, 22 S. W. 580, 34 Am. St. Rep. 823, 20 L. R. A. 481.

12. Instruments for payment of merchandise. Chitty on Bills, 132. See also Atkinson v. Manks, 1 Cow. (N. Y.) 691, 707; Jerome v. Whitney, 7 Johns. (N. Y.) 321, where a note to pay sixty dollars in "neat cattle was held not to be a note within the statute: Thomas v. Roosa, 7 Johns. (N. Y.) 461; Saxton v. Johnson, 10 Johns. (N. Y.) 418; Jones v. Fales, 4 Mass. 245; Youngs v. Adams, 6 Mass. 182. In the case of Carleton v. Brooks, 14 N. H. 149, it was held that a written promise to pay the plaintiff or his order, seventy-five dollars in grain, is not a promissory note. The court said: "But the rules which determine the requisites of negotiable

paper have arisen from an experience of the necessities of commercial transactions, and have been settled by a well-considered course of judicial decisions. These rules should never be trenched upon, unless in cases of absolute necessity, when exceptions to them must of course exist." It has long been settled in England that a promissory note must be for the payment of money only, and not for the delivery or payment of merchandise, or other things in their nature susceptible of deterioration and loss, and variation in quality and value. Martin v. Chauntry, 2 Stra. (Eng.) 1271; Smith v. Boheme, 2 Ld. Raym. (Eng.) 1362. And such is the opinion of Chancellor Kent, who says that the doctrine of the cases which hold that a promissory note may be for the payment of other things than money, has been met and denied. 3 Kent's Comm. 76." See also Tibbets v. Gerrish, 25 N. H. 41, 57 Am. Dec. 307; Riggs v. Price, 3 G. Greene (Iowa), 334; McCartney v. Smalley, 11 Iowa, 85; Coyle v. Satterwhite, 4 T. B. Mon. (Ky.) 124; Pepper v. Peytavin, 12 Mart. (O. S.) (La.) 671; Brown v. Richardson, 20 N. Y. 472; Rhodes v. Lindley, 3 Ohio, 51, 17 Am. Dec. 580.

Payable in services.- A note payable wholly or partly in personal services is not assignable. Ransom v. Jones, 2 Ill. 291; Halbert v. Deering, 4 Litt. (Ky.) 9; Henry v. Hughes, 1 J. J. Marsh. (Ky.) 453; Bothick v. Purdy, 3 Mo. 82; Prather v. McEvoy, 8 Mo. 661; Quinby v. Merritt, 11 Humph. (Tenn.) 439.

question of negotiability of an instrument made payable in current bank notes.

b. Definitions; money; currency; legal tender.-Money is a general, indefinite term for the measure and representation of value.13 It is a generic term, and embraces every description of coin or bank notes, recognized by common consent as a representative of value in effecting exchanges of property or payment of debts.14 Money has been defined by Chancellor Kent in the case of Mann v. Mann, 15 to be cash, that is, gold and silver, or the lawful circulating medium of the country including bank notes, when they are known and approved of, and used in the market as cash. Currency is bank bills, or other paper money, which passes as a circulating medium in the business community, as and for the constitutional coin of the country.16 The term includes coin and such bank bills as pass freely in commercial transactions as money, and are regarded as equivalent in value to coin.17 As stated by Ryan, Ch. J., in the well-considered case of Klauber v. Biggerstaff:18 "In fact almost all civilized countries, including this

13. Black's Law Dict., p. 785. 14. Hopson v. Fountain, 5 Humph. (Tenn.) 140.

Money, meaning of term.- In the case of Jones v. Overstreet, 4 T. B. Mon. (Ky.) 547, Bibb, Ch. J., said: "We cannot but know that money, in its most general signification, meant a representative of value, a medium of commerce and exchange. In this general term is included lawful tender money, and current money, and that the one or the other of these species of money is intended by certain forms and modes of expression, according to the times and currencies in use, and the same words used at different periods may convey different ideas as to the kind of money in tended. During the Revolutionary War, when paper money was the only circulating medium of the States, current money meant paper money; after that was abolished and called in, and gold and silver became the currency, then current money meant coined money and not paper," citing and distinguishing Chambers v. George, 5 Litt. (Ky.) 335; Lampton v. Haggard, 3 T. B. Mon. (Ky.) 149.

The American and English Encyc. of Law (2d ed.), vol. 20, p. 837, defines money as that which passes freely

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community in final discharge of debts and full payment for commodities, being accepted equally without reference to the character or credit of the person who offers it, and without the intention of the person who receives it to consume or apply it to any other use than in turn to tender it to others in discharge of debts or payment for commodities." This definition is that employed by Mr. Walker in his work on Money, Trade, and Industry," and is approved by Darling, J., in the case of Moss v. Hancock, L. R. (1899), 2 Q. B. D. (Eng.) 111, 116.

15. 1 Johns. Ch. (N. Y.) 236. 16. Galena Ins. Co. v. Kupfer, 28 Ill. 332, 81 Am. Dec. 284. This was an action on a check payable in current funds; when presented for payment, depreciated Illinois bank paper was offered and refused. The court held that the term "current funds " meant current money, par funds, or money circulating without any discount.

See also Chicago Fire & Marine Ins. Co. v. Keiron, 27 Ill. 501.

17. Marine & Fire Ins. Co. v. Tincher, 30 Ill. 399; Webster v. Pierce, 35 Ill. 158; Bull v. Kasson Bank, 123 U. S. 105, 8 Sup. Ct. 62, 31 L. Ed. 97. 18. 47 Wis. 551, 32 Am. Rep. 773. The term "currency," when applied

from hand to hand throughout the to the medium of trade, means equally

country, have a mixed circulation of coin and bank notes. These constitute the currency of the country-its money; and the general term, currency,' includes both. Currency, therefore, means money coined money and paper money equally. But it means money only; and the only practical distinction between paper money and coined money, as currency, is that coined money must generally be received, while paper money may generally be specially refused in payment of a debt; but a payment in either is equally made in money-equally good. The confusion in the cases appears to have arisen for want of proper distinction between money which is current and money which is legal tender. The property of being legal tender is not necessarily inherent in money; it generally belongs no more to inferior coin than to paper money.' Legal tender is that kind of money which the law compels a creditor to accept in payment of his debt, when tendered by the debtor in the right amount.19 Foreign gold or silver coins are not legal tender.20 The gold and silver coins of the United States and United States notes are lawful money and legal tender in the payment of all debts, public and private.21 National bank notes are lawful money but are not legal tender.22

c. Instruments payable in current funds or currency. There are a number of cases holding that a note or bill payable in currency or current funds is not negotiable.23 These do not seem to

coin, bank notes, or notes issued by the government. Webster's Dict.; Croker v. State, 47 Ala. 57.

Currency includes coined money and such bank notes and other paper money as are authorized by law and do in fact circulate from hand to hand as the medium of exchange. Black's Law Dict., p. 311.

19. Black's Law Dict., p. 700. 20. U. S. Rev. Stat., § 3584. 21. The gold coins of the United States shall be a legal tender in all payments at their nominal value when not below the standard weight and limit of tolerance provided by law for the single piece, and, when reduced in weight below such standard and tolerance, shall be a legal tender at valuation in proportion to their actual weight. U. S. Rev. Stat., § 3585.

Silver dollars are full legal tender, 20 U. S. Stat. at L. 25.

Silver coins of less than one dollar in denomination are legal tender in all sums not exceeding ten dollars in

full payment of all dues, public and private. 21 U. S. Stat. at L. 7.

22. Woodruff v. Mississippi, 162 U. S. 291, 300, 16 Sup. Ct. 820, 40 L. Ed. 973.

But see

23. Payment in currency.- Mobile Bank v. Brown, 42 Ala. 108; Huse v. Hamblin, 29 Iowa, 501, 4 Am. Rep. 244; Rindskoff v. Barrett, 11 Iowa, 72. In both of these Iowa cases it was intimated that evidence might be admitted to show that instruments payable in currency were negotiable under an existing custom. contra, Howe v. Hartness, 11 Ohio St. 449, 78 Am. Dec. 312; Butler v. Paine, 8 Minn. 324, and Klauber v. Biggerstaff, 47 Wis. 551, 3 N. W. 357, 32 Am. Rep. 773; Bank of U. S. v. Bank of Georgia, 10 Wheat. 333, where Justice Story says: "Bank notes constitute a part of the common currency of the country and ordinarily pass as money. When they are received as payment, the receipt is always given for them as money. They are a good