reason an instrument which possesses all the other requisites of a bill or note is not such if the medium of payment be "foreign bills," or "checks," or "exchange." 85 Whether an instrument, the medium of payment of which is "current funds," or "currency," is a bill or note is a question of construction in the solution of which the courts have not been unanimous. Some hold that "current funds" or "currency" means nothing more than legal tender; while others give those expressions a meaning wide enough to include not

*625; English Bills of Exchange Act, § 72), the question under discussion does not arise. In addition to THOMPSON v. SLOAN, supra, St. Stephen Branch Ry. v. Black, 2 Hannay, 139, and Bettis v. Weller, 30 U. C. Q. B. 23, are the only cases in England or in North America in point. In the former a conclusion contrary to the decision in THOMPSON v. SLOAN was reached, and the Supreme Court of New Brunswick held that an instrument payable in New Brunswick in the medium of United States money was a note. The latter case is in accordance with THOMPSON v. SLOAN. The authority of Bettis v. Weller, however, is weakened by the fact that in Third National Bank v. Crosby, 43 U. C. Q. B. 58, 69, it is in terms overruled, although the court was dealing with dissimilar facts. Black v. Ward, 27 Mich. 191, 15 Am. Rep. 162, and HOGUE v. WILLIAMSON, 85 Tex. 553, 22 S. W. 580, 20 L. R. A. 481, 34 Am. St. Rep. 823, Moore Cases Bills and Notes, 47, are often cited, but neither is in point. In both of those cases the medium of payment designated was the money of the country where the instrument was payable. Whatever, the Anglo-American law may be, in Scotland (before 1882) and on the continent, since a bill, in which the sum payable is expressed in a money other than that of the place of payment, either may or must be paid in the foreign money designated, it would seem that a bill or note of which the designated medium of payment is not the legal tender of the place of payment would be valid.? Thompson on Bills, p. 254; German Exchange Act, art. 37; Staub, Wechselordnung (1899) pp. 103, 19; Commercial Code of France, art. 143; Commercial Code of Spain, art. 494. Compare, however, English Bills of Exchange Act, § 72.

85 Jones v. Fales, 4 Mass. 245; The Lykus (D. C.) 36 Fed. 919; First Nat. Bank of Farmersville v. Greenville Nat. Bank, 84 Tex. 40, 19 S. W. 334; First Nat. Bank of Brooklyn v. Slette, 67 Minn. 425, 69 N. W. 1148, 64 Am. St. Rep. 429; Chandler v. Calvert, 87 Mo. App. 368. See Phoenix Ins. Co. v. Gray, 13 Mich. 191.

86 Telford v. Patton, 144 Ill. 611, 33 N. E. 1119; Citizens' Nat. Bank v. Brown, 45 Ohio St. 39, 11 N. E. 799, 4 Am. St. Rep. 526; Butler v. Paine, 8 Minn. 324 (Gil. 284); Phelps v. Town, 14 Mich. 374; Laird v. State, 61 Md. 309; McCormick v. Kampmann (Tex.) 109 S.

only legal tender, but other possible media of payment.87 Though accepting the same criterion-i. e., that the medium of payment of a bill or note must be money-they have arrived at various conclusions as to the meaning of the terms in question. In a recent case,88 in determining that an instrument in the form of a certificate of deposit, payable in "current funds," was a promissory note, the court reviewed the authorities and stated its conclusions as follows:

"The first objection is that it is not made payable in 'money,' that 'current funds,' in which it is made payable, should not be judicially interpreted to mean 'money.' We do not think this contention should prevail. This subject has been discussed exhaustively by many courts, and the conclusions they have reached on the one side and the other are not in harmony. But we think that the modern and better doctrine is that the term 'current funds,' when used in commercial transactions as the expression of the medium of payment, should be construed to mean current money, funds which are current by law as money, and that, when thus construed, a certificate of deposit payable in current funds is in this respect negotiable. It is well known that certificates of deposit are commonly made payable in 'currency,' or in 'current funds,' and we believe that the interpretation we have given is in accord with the universal understanding of parties giving and receiving these instruments, an understanding which we should resort to as an aid to interpretation, unless the words themselves fairly import some other meaning. Some courts hold that evidence may be received to show the meaning of the terms 'currency,' 'current funds.' But, in the absence of evidence, these courts come to opposite conclusions. For instance, in Iowa,

W. 492; s. c., 24 Tex. Civ. App. 462, 59 S. W. 832; Forrest v. Safety Banking & Trust Co. (C. C.) 174 Fed. 345 (N. I. L.); Pomeroy Nat. Bank v. Huntington Nat. Bank (W. Va.) 79 S. E. 662.

87 Platt v. Sauk County Bank, 17 Wis. 222; Wright v. Hart's Adm'r, 44 Pa. 454; Huse v. Hamblin, 29 Iowa, 501, 4 Am. Rep. 244; Mobile Bank v. Brown, 42 Ala. 108; Dille v. White, 132 Iowa, 327, 109 N. W. 109 (N. I. L.).

88 HATCH v. FIRST NAT. BANK, 94 Me. 348, 351-353, 47 Atl. 908, 80 Am. St. Rep. 401, Moore Cases Bills and Notes, 49.

the court holds that notes payable in currency are prima facie non-negotiable, but that evidence may be received to prove that the word 'currency' describes that which by custom or law is money, and thus the instruments may be shown to be commercial paper. Huse v. Hamblin, 29 Iowa, 591, 4 Am. Rep. 244. On the other hand, in Michigan, it was held that, where a certificate of deposit was made payable in currency, 'prima facie, at least, that must be held to mean money current by law, or paper equivalent in value circulating in the business community at par.' 'Such, we think,' said the court, 'is the general signification, the fair import, and the ordinary legal effect of the term.' Phelps v. Town, 14 Mich. 374; Phoenix Ins. Co. v. Allen, 11 Mich. 501, 83 Am. Dec. 756.

"Still other authorities hold that the terms 'currency' or 'current funds,' used in commercial paper, ex vi termini mean money. Judge Campbell, in Black v. Ward, 27 Mich. 191, 15 Am. Rep. 162, after a critical examination of a mass of authorities, declared that, with few exceptions, 'the general course of authority is in favor of the negotiability of paper payable in currency, or in current funds. And these decisions rest upon the ground that those terms mean money, as the necessity of having negotiable paper payable in money is fully recognized.'

"The term "funds,' say the court in Galena Ins. Co. v. Kupfer, 28 I11. 332, 81 Am. Dec. 284, 'as employed in commercial transactions, usually signifies money. Then the term "current funds" means current money, par funds, or money circulating without any discount.' Respecting an instrument payable in 'current funds,' the Maryland court said: "The words "current funds" as used in the paper before us mean nothing more or less than current money, and so construed the instrument was negotiable.' Laird v. State, 61 Md. 311. See also Miller v. Race, 1 Burr. 452; 1 Smith's Leading Cases, 808. The Supreme Court of the United States had occasion, in Bull v. Bank of Kasson, 123 U. S. 105, 8 Sup. Ct: 62, 31 L. Ed. 97, to pass upon the negotiability of an instrument which had been made payable in 'current funds.' That court said: 'Undoubtedly it is the NORT.B.& N.(4TH ED.)-5

law that, to be negotiable, a bill, promissory note, or check must be payable in money, or whatever is current as such by the law of the country where the instrument is drawn or payable. There are numerous cases where a designation of the payment of such instruments in notes of particular banks or associations, or in paper not current as money, has been held to destroy their negotiability. But within a few years, commencing with the first issue in this country of notes declared to have the quality of legal tender, it has been a common practice of drawers of bills of exchange or checks, or makers of promissory notes, to indicate whether the same are to be paid in gold or silver, or in such notes; and the term "current funds" has been used to designate any of these, all being current and declared, by positive enactment, to be legal tender. It was intended to cover whatever was receivable and current by law as money, whether in the form of notes or coin. Thus construed, we do not think the negotiability of the paper in question was impaired by the insertion of these words.'"

Payment in Property Other than Money

The real reason for the requirement that negotiable instruments must be payable in money obviously is that money is the one standard of value in actual business. All other commodities may rise and fall in value, but in theory, at least, money always measures this rise and fall, and remains the same. The chattel which is used as a means of payment may fluctuate in value. Thus, a note for sixty dollars "to be paid in neat cattle," so and a promise to pay "in a good horse, to be worth $80.00, and goods out of store amounting to $20.00," 9° are non-negotiable. These instruments are special contracts for delivery of chattels, and not negotiable instruments.91 The damages recoverable upon

89 Jerome v. Whitney, 7 Johns. (N. Y.) 322.

90 Thomas v. Roosa, 7 Johns. (N. Y.) 461. For other authorities, see Byles, Bills (Wood's Notes) p. 95.

91 Matthews v. Houghton, 11 Me. 377; Rhodes v. Lindley, Ohio Cond. R. 465; Lawrence v. Dougherty, 5 Yerg. (Tenn.) 435; Auerbach v. Pritchett, 58 Ala. 451; Smith v. Boheme, 1 Chit. Jr. Bills, 234; Clark v. King, 2 Mass. 524; Gushee v. Eddy, 11 Gray (Mass.) 502, 71

93

them are held to be in some states the actual value of the articles on the day stipulated for payment; 92 but in New York, although it is admitted that these contracts are merely for the delivery of specific articles, yet when the words were, "To pay J. P. $79.50, Aug. 1st, 1822, in salt, at 14s. per bbl.," it was held that it was intended at the time of making the contract to receive the goods instead of money, and that the goods had, therefore, a fixed value, which must be treated as the measure of damages. In other respects, the debtor must seek his creditor to perform the contract as is the usual rule. If the chattels are ponderous, the maker of the note must seek the payee, and see where he will receive them.

Sum Payable Expressed in Terms of Foreign Money

There is one apparent deviation from the rule requiring the medium of payment to be money. The expression in a bill or note of the sum payable in the denominations of foreign money does not affect its validity as such. In the absence of a specific designation of a medium of payment, the instrument is construed as calling for the payment of money of the country in which it is payable; the sum of foreign money stated is taken to be an indirect way of expressing the amount of money (of the place of payment) to be paid.94

95

The courts, under the statutes of the United States," will take judicial notice of the fact that the value of foreign

Am. Dec. 728. In Quinby v. Merritt it was held that a written agreement to pay the equivalent of a certain sum in labor did not constitute a promissory note. 11 Humph. (Tenn.) 439.

92 McDonald v. Hodge, 5 Hayw. (Tenn.) 85; Edgar v. Boies, 11 Serg. & R. (Pa.) 445.

93 Pinney v. Gleason, 5 Wend. (N. Y.) 393, 21 mont, Connecticut, and Ohio have a similar rule. 3 Day (Conn.) 68; Perry v. Smith, 22 Vt. 301.

Am. Dec. 223. Ver-
Culver v. Robinson,

94 "A note payable in pounds, shillings, and pence, made in any country, is but another mode of expressing the amount in dollars and cents, and it is so understood judicially." THOMPSON v. SLOAN, 23 Wend. (N. Y.) 71, 35 Am. Dec. 546, Moore Cases Bills and Notes, 44, per Cowen, J. Compare Moore's Ex'rs v. Russell, 5 Ky. (2 Bibb) 442.

95 Rev. St. § 3564, 28 Stat. L. 552 (U. S. Comp. St. 1901, p. 2375).