
    In Bank.
    Dec. Term, 1846.
    Augustus W. Swetland and Fuller M. Swetland vs. David M. Creigh and others.
    A promissory note for $200, payable in current.Ohio banlc notes; is for, a surtí of money certain, and'negotiable.
    V ' This suit is by, a Writ of Error to the Court of- Coifimon Pleas' of Kúox-County, and reserved for decision in this Court.
    ' • The plaintiffs 'in-error were the. makers of a certain written .instrument, the, foundation of the original action, which is in the words and -figures following:. ' ' . . "
    “ Spart’a," Sept. 1st, 1841.
    ■ - “We promise to pay L. H. Newcomb, or order, two hundred dollars in current Ohio bank notes,■ two years after'date, for value received.-
    “A. W.. SWETLAND,
    “-F. M.S WETLAND.”'
    ■And indorsed on.its back, “ L. IT. Newcomb.”
    On this instrument, the defendants in error, • the indorsees, brought their action of assumpsit against .the- plaintiffs in error. The declaration contains a. special count/ founded on the; indorsement, and, also, the common counts for monéy. lent, had and received, and on an account, stated between the parties. .
    The plaintiffs in error demurred Specially to the first, and plead the general issue of non-assumpsit to the other counts.
    . The causes assigned for the demurrer, are, that the instrument declared on is not.a promissory note; that it is not negotiable, and that no consideration is averred for the indorsement. The defendants in error' joined in demurrer, and this issue of law being submitted to the Court, the demurrer w.as overruled.
    The issue of fact, as well as the assessment of damages on the first count in the declaration, then beirig submitted to the Court, the instrument before described was offered in evidence by the defendants in error, in support of the common counts. To this proof the plaintiffs in error- objected, but the Court admitted the instrument, and gave judgment for the'defen dan in error, .no other evidence being: adduced; and. the- plaintiffs-in error excepted to the ruling and. judgment of the ..Coiirt. '
    Several errors-are assigned upon the record which need.nót be noticed,-.-They . are not, apparently;'relied, upon -by the-counsel for the. plaintiffs in error, as; they are n.ot- alluded ,-to in their argument. ■ The-fifth- assignment is, that the instrument declared upon.and admitted in evidence-is not sUch an one as authorized the assignees to sue .in their own name,.;.-
    
      Vance ‘ fy.- Smith, for Plaintiffs i,n error.
    •To constitute a promissory nóte;' it is necessary the' instrument^-should', be- made payable'.'in,, a sum of money certain.-— Chifty bn Bills, 55'; Swan’s Slat. 587. .
    , Is a note; madé payable in current bank-notes, for a sum certain any more than though payable'in'flour or pork?- .We can see no distinction, in principié. Bank notes are not mone'y, nor do they necessarily-import' a certain sum in money; for;, though current, they are often below par.
    We are aware that a devise .of all one’s money has been held to include bank notes, but this is but carrying out the intention-of the .devisor. 1 Roper, 3.
    In England, it .has been decided that an action for money had and received; will not lie against- the finder of bank notes, unless he has actually ’ converted them into money. Chitty on Bills, 556, and cases there cited.
    But the precise question now before the Court, has been decided in- the. .Courts of several of the States;'and such paper held' riot to be negotiable,', and. for the re.ason that,' being made payable in .bank notes, they were not for a sum of money certain. Jones v. Fales, 4- Mass. Rep-245; Leiber v. Goodrich, 5 -Cowen.Rep, 186 ; Large v. Káhn, 1 McCord’s Rep. 115 ; McClarren v. Nesbit, 2 Nott &, McCord’s Rep. 519; Collins v. Lincoln; 11 Vir. Rep. 268; Irvino v; Lowry, 14 'Peters’ Rep, 293. t •' .
    
      
      T. W. Bartley and Franklin Barker, for Defendants in error.
    The question for the consideration of the Court, is, whether the note declared on by the plaintiffs in the Court below, which is payable in the sum of two hundred dollars, in current Ohio bank notes, to S. H. Newcomb or order, is a negotiable instrument Í
    
    The statute making certain instruments negotiable, requires, it is true, that./ to make them so, 'they must be drawn for a “sum, or for sums of money certain.”
    The law on this subject has been settled by decisions of the highest authority, and it is .not presumed that this Court will introduce uncertainty in the law by overruling them. The case of Morris v. Edwards, 1 Ohio Rep. 189, settles the question, that a contract payable in current bank notes is a contract ipayable in money,, in the ordinary transactions of business.
    This decision is sustained by the decision of Lord Mansfield, 1 Burr. 457; also, by Keith v. Jones, 9 Johns. Rep. 120, and Judah v. Homes, 19 Johns. Rep. 144.
   Wood, C. J.

The consideration of the fifth assignment of error involves the whole inquiry necessary to be made, in order to determine whether any error intervened in the overruling the demurrer, admitting the instrument in evidence in support of the common counts, and the judgment which followed.

In other words, and to be more precise, is the instrument in question a negotiable promissory note ? If it is, the action is well brought in the name of the indorsees; the declaration is in all respects sufficient, and the ruling and judgment of the Court of Common Pleas is without legal fault, and should be sustained by this Court.

The negotiability of paper is a subject within the province of legislation, and the statute of this State has made all bonds, promissory notes, &c., drawn for any sum or sums of money certain, and payable to any person or order, or any person or bearer, &c., negotiable by indorsement thereon. This instrument is clearly within both the letter and spirit of the statute, if it is payable in a sum of money certain. The counsel for the plaintiff in error, however, claim that two hundred dollars in current Ohio bank notes, is not two hundred dollars in money certain; because bank notes are not money, but promises for money. Tliey are not a legal tender, it is true; they are neither silver nor gold: but current bank notes are the representatives of both. By the business community they are considered as cash in hand by those who have them in possession. Ask A for a loan of $1,000 — he counts it to you in bank paper. If you promise to pay $1,000 in money, you count it to your creditor in bank paper. The sense and understanding of business and moneyed mien, is that, for ordinary purposes at least, it is money or cash. By a devise of all his money, the bank notes in the testator’s safe pass to the legatee ; 1 Roper, p. 3. The Supreme Court of this State have, on the circuit, repeatedly held that a note payable in current bank notes', was payable in money, and negotiable; Morris v. Edwards, 1 Ohio C. Rep. 85. The same rule has been laid down by the Supreme Court of New York; 9 J. Rep. 120; 19 J. Rep. 144. And in Pennsylvania it has been decided, that a note payable in foreign bank notes is not negotiable; while one payable in the notes of that State would be, if current, within the rule-A different course of decision has prevailed in some of the States, and in England, but the authority of our own Court for many years should not be departed from when no evil is seen to grow out of its adjudications on this subject.

Judgment Affirmed.

Read, J.,

dissenting. It is admitted that the Legislature might convert equitable into a legal right, and in all cases permit the assignee of a chose in action to maintain a suit at law in his own name. But this has not been done. Both under our own statute and the Law Merchant, a note or bill to becoiné negotiable, so ás ’ to clothe the assignee with the legal ’ right-in such-' note, must be payable in money. This is not disputed. The. only question, is, are current Ohio bank notes money.i-. Tiié ■ instrument. on. which this'suit 'is-brought,-is made payáble in current Ohio bank notes. .A majority of the Court hold -that- such an- ihstruqient is a negotiable note, paya-, ble in money under the statute —that'current Ohio bank notes aré money.. •..-'-This is a' most extraordinary conclusion. Bank notes, are -not-.money'. -They, do not' purport to be money. They arp only .promises' to pay money on' demand. • They, in law; are never-treated as money- — they are -not a legal tender. The whole legislation of'- the State 'respecting ' bank bills or hotés, treats 'them as such, and not as money. ■ In the criminal .laws punishing, the stealing of Counterfeiting of. such paper, and in the civil-’■ remedies prescribed where banks and bankers are. parties,' bank bilis Or' notes áre not treated .as money, but as evidence' of indebtedness.— precisely what they claim to • be themselves. ■ I .¿m aware ' that decisions . afe. to .be found where- such instruments have been bold, negotiable, but the-weight of authority ;is. the other way-, ■ as well ■ as the most manifest reason-.' It is .true,: that bank bills pro sometimes treated, as-money-; as' where-they have been accepted in payment of a debt, pr where they have been dernised'. as money, and such was . the intent of the testator.. -This results from the act, .or agreement'Of the parties themselves.-. . It is not' even necessary, to effect that end',, that‘bank notes are'do "be held money; because any article, received in satisfaction of a' debt, is suffi- ' .cient in law to.discharge it,.and the intention of 'a testator will govern ip a will. ... •

.. * Current bank notes.’, does not signify a sum of. money certain. The terms current and bankable, are well understood., ' Paper is regarded as current which will circulate in. the ordinary trans- . action of .business, and may vary 5, 1.0, ,15 ' pr, 20 per cent., according to the: folly or good nature of the community. In this sense, thén, this instrument is not negotiable. But the .great error is in , giving countenance to the idea that bank notes are money. No man can affirm that á bank note is money, It is too clear for argument. Nor can mére usage be permitted to take the place of the statute. '  