
    N. C. Gordon vs. Wilson Parker.
    where suit is brought upon a promissory note, payable in a certain species of bank paper, the specie-value of the bank paper, at the period of the maturity of the^ , note, with interest thereon, is the criterion of damages for tlje jury.
    When bills of exceptions are regularly certified by the clerk below, in the record, as appertaining to the cause, it is not necessary that they should be entitled of any court or case.
    In error from the Wilkinson circuit court.
    The action was founded on the following due bill.,
    “$5000. Due George S. Smith, or bearer, five thousands dollars,' payable in Brandon money. Jackson, January 26th, 1839. “ N. C. Gordon.”
    This was all the testimony before the jury.
    The court, on application of the plaintiff below, instructed the jury , 1. “ If a specified amount of money is made payable in a particular kind of currency, or "any other kind of commodity, and the amount stipulated is not paid when due, in the manner contracted, nor proved to be tendered, the amount to be recovered is the amount specified,_in good money.
    2. “ That to have avpided the necessity of paying in good money, it was necessary for the defendants to have proved a tender of the Brandon money.
    3. “ That it was incumbent on. the defendant to show that the notes of the Brandon Bank, were inferior in value to good money, at the time the contract was due and payable, and the jury cannot presume they were inferior, in absence of proof.”
    These instructions, and the admission of the due bill, as -evidence, were all excepted to, by the defendant.
    The defendant asked the court to instruct the jury: “ First, that unless the defendant has proven the value of Brandon Bank paper at the time the note sued on, became due, and payable, they must find for the defendant. Secondly, that the measure of damages in this case is the specie-value of the Brandon bank paper, at the maturity of the note, with interest.”
    The court refused both these instructions, and bills of exceptions were tendered and sealed.
    With reference to the bills of exceptions, the record says, “ Whereupon the following bills of exceptions were filed, to wit: Be it remembered, &c.” when follow five bills of exception.
    The defendant moved for a new' trial, which was overruled, and he sued out this writ of error.
    The errors assigned, are based upon the action of the court below, in giving the instructions asked for by the plaintiff and refusing to give those asked for by the defendant, and in overruling the motion for a new trial.
    
      Simrall, for plaintiff in error.
    We will first consider the instructions given by the court below, and under this head, we will examine the charges called for on both sides, as those given at the instance of Parker’s counsel, are the reverse of those refused to be given at the request of Gordon’s counsel. And here let it be premised that the only evidence of debt in the case, is Gordon’s due-bill, an acknowledgment of present indebtedness, to the amount of $5000 of Brandon money.
    1st. The instruction refused that unless the plaintiff had proved the value of the Brandon money, at the maturity of the due-bill, the jury must find for the defendant. This instruction assumes, that it was the duty of Parker to prove the value qf Brandon money, and further that Brandon money was the measure of damages. Although if Gordon had proved it, such a charge might have been improper. But the record shows that neither party offered it; and that the opinion of the court below was against its admissibility, if offered. What is the meaning and intention of the parties to this contract ? Is it a contract to pay $5000 in specie ? or a contract to pay that many dollars in the notes of the institution, commonly called “ Brandon Bank,” to pay Brandon money, to pay too so many Brandon Bank notes as when counted on their face will make $5000 1 We think that the last is the proper construction of this contract. When popular terms and words are used, the court will give them that acceptation in which they are génerally received and understood in the community. If this were a specie contract, of what operation and meaning are the words that specify the kind of funds in which the debt is to be paid?
    Notes for money for specie are generally drawn for so many dollars, and whenever there is a departure from the common and accustomed mode, there must be a special reason for it. Anderson v. Ewing, 3 Lit tell, 245, in many of its features is like the present. (It may be remarked that this is the leading case on the subject, in Kentucky, and is considered as settling the law.) If the doctrine of that case be sound, it clearly shows that the court below erred in refusing this instruction. The case was substantially this. An obligation, under seal, to pay $800, on or before the 1st September, 1820, in such bank notes as are received on deposit at that time, in the Hopkins-ville Branch Bank. The court, in discussing the interpretation of the contract, observe, “ Did it mean that the defendant was to pay the amount in specie, or. rather as many depreciated dollars in bank paper as would be equal to $800 in specie, when reduced by the scale of depreciation, or did it bind the party to pay only so many paper dollars of the description mentioned, as when counted at par would amount in number to $800 ? ” The court adopts the last as the meaning and intention of the parties. A distinction is drawn between a note for so many cattle, or wheat, or other commodity, and the instrument under consideration. Speaking of contracts for bank notes, they observe, “ They engage to pay so many dollars, as are numerically calculated by the number they express, and are indeed in common parlance, called dollars, so that the expression, $800 in bank paper is universally understood to mean that many when the numbers expressed on the face of the notes are added together, and not as including so many more superadded as will make them equal to eight hundred dollars in specie. Such must have been the intention of the parties to this instrument.” It is farther decided that the value of the most depreciated notes taken on deposit at the Branch Bank, is the measure of damages, for the very obvious reason that the payment in such notes on the day would have been a discharge of the contract, and that therefore the plaintiif has only been injured to the amount of their value and interest, &c.
    
      January v. Henry, 2 Mon. 58, the same doctrine is asserted. That was an action of debt for $¡527. “ Sixty days after the date of said writing, to be paid in Philadelphia funds.” The court say that the form of action was illy conceived, and that covenant was the proper remedy to recover the value of “ these funds.” Had this been an action for that amount of money, then debt would have been the proper remedy. But these funds may have been worth less than $527, and then the amount of recovery was uncertain, and this uncertainty can be made certain, only by proof aliunde. It will be perceived that the' phraseology of this contract is similar to Gordon’s substituting “Brandon money” for “Philadelphia funds.”
    The case at bar is stronger, however, in one particular, than either of these. Gordon’s debt is due in presentí, the very day the writing bears date, when the value of this money was known to both parties, and when there was no risk on either side as to its future fluctuation. White v. Green, 3 Mon. 155.
    2. This instruction asked by Gordon’s counsel, that the value of Brandon money at the maturity of the due-bill, is the measure of damages. This is in substance the first charge, only varied in language. Much that could be said on this point was anticipated on the first. This proposition is proved when it is ascertained that Gordon’s debt was five thousand dollars of Brandon notes, counted on their face.
    The value could not be ascertained by an inspection of the instrument; it could only be made known to the jury, aliunde. In Coleran v. Miller, 1 Blackford, Ia. Rep. 296, it is held, in covenant on a sealed note, for a sum certain, in current bank paper. It is not the sum named in the note, but the value of the bank paper at the maturity of the note, which is the standard for the jury in their verdict. That the value of bank paper is the proper subject of proof, and must regulate the measure of damages in such cases, see 1 Blackford, 346 and 350. Conover’s Digested In. 42. Debt will not lie upon a covenant to pay in the notes of the United States Bank, or its branches, for the reason before given. Ibid. 231. Ibid. 234. See also 7 Monroe, 410.
    All these decisions are based upon the principle, that bank notes are not legally and technically money. To this effect, abundant authority, English and American, can be cited. Chitty on Bills, 152,153,154. Jones v. Fales, 4 Mass. 245. 5 Cowen, 186. 10 Serg. & R. 94. 1 McCord, 115.
    We agree that bank notes pass under a bequest, of all a testator’s money; but this is because it was the intention of the testator to include such paper. For many purposes bank paper is money, and is so regarded. In order to test this point, in another view, suppose that Gordon had made default. What should have been the judgment of the court below ? Interlocutory, or final? Was this “instrument of writing,” ascertaining the sum due,” (Rev. Code 120, sec. 67,) such as would authorize a final judgment? We think not; and in this we are fully sustained by 7 Monroe, 409, 410, Forean v. Brown. This was a promise under seal, to pay Brown $1855.9, in notes on the Bank of the Commonwealth of Kentucky; the pleas were withdrawn, and the court below gave judgment for amount of note, &c. The court of appeals say that this was error; that the proper judgment should have been an interlocutory one, to inquire of damages. Their language is, “ There should have been no judgment for any specific amount, without the intervention of a jury, to assess damages; the damages to be recovered are not to be ascertained by an inspection of the covenant, but depend upon the value of the bank paper at the time it was payable, and of which value it is the province of the jury, and not the court, by evidence aliunde, to ascertain and assess.”
    Now, is not this language in direct opposition to the charge given by the court below? “ That to avoid the payment of good money, Gordon should have tendered the Brandon money, at the maturity of the due bill; (i. e., before the ink was dry with which it was written,) and that the jury must presume the Brandon money equal in value to good money, in absence of proof to the contrary.” Is the presumption of law, that Brandon money, in 1839, was equal to specie? With equal reason the law could presume, a pound of cotton, in 1839, was worth a dollar, because A. acknowledged that he owed B. a pound of that article. The value of any commodity, bank notes, or what not, is alone ascertainable by proof. But this instruction presents the absurdity, that the law presumes a thing to be of a certain value, upon the very absence of all proof on the point. 2 Dana, 298.
    
    This instruction admits, that if Gordon, immediately after giving this due bill, had tendered Brandon money, it would have been a performance of his contract. This is an admission of the position we have been laboring — that this contract was in fact, for Brandon money. Now it is submitted, on his failure to do this, how much was the holder of the instrument damaged 1 Why, most certainly, not more than the worth of this bank paper, and the interest which has accrued. No ingenuity of reason can show the contrary. If 5000 pounds of cotton be substituted for the Brandon money, no lawyer would contend for larger damages than its value and interest. It is asked, where is the difference between the cases, and why should not the same rule which governs all cases of contract be applied to this ?
    Is it by way of penalty, or punishment, that Gordon is required to pay more than the money was, in fact,-worth ? Suppose that, at the date of this writing, Brandon money was only worth fifty cents on the dollar, has Parker been injured more than fifty cents on the dollar I Will the law allow speculation, in this case, which is tolerated in no other class of contracts ?'
    The court below erred in overruling the motion for a new trial. The jury found their verdict upon insufficient testimony; as before remarked, the only evidence before them was the due-bill. It was indispensably necessary Co a recovery, that the plaintiff below should have proved the consideration of this due-bill.
    
      This writing is not a promissory note, at common law, or within our statutes. The case in 5 Cowen, decides that a note payable in bank bills, current in New York or Pennsylvania, is not a cash note, a note for the payment of money, and assign as a reason, that the court could judicially know, that Penn..sylvania bank notes might not be equal to cash; in the case in ,4 Mass, the court say. that the notes of country banks might not be equal to cash, and that they might judicially know the fact. Now will not this court in like manner judicially know, that Brandon money, at the date of this due-bill, was notoriously depreciated, and not equal, to cash 1 It is confidently asserted that the only instances in which notes payable in bank paper, are held to be cash notes, in any of the courts of the states, are where the courts would judicially know, that the kinds of paper specified, were equal to cash, and at will convertible into cash. A promissory note imports a consideration, and none need be averred or proved. But this writing, not being a promissory note, and therefore not importing a consideration, it was a nudum •pactum without such proof. At common law, this instrument is a mere parol contract. To sustain an action upon it, Gordon’s signature must be proved, and a consideration. How is it affected by our statutes; to what extent, if any, has its common law character been changed by the statute of 18221 That statute makes all bills, bonds, promissory notes, or other writings, for the payment of money, or any other thing assignable, and permits the makers to set up all defences in the hands of an assignee which would exist between himself and the other original party. This statute makes this writing negotiable, which was not so at common law, and makes it subject to all equities and defences in the hands of an indorser.
    By the statute of 1824, How. & Hut. Gordon is estopped from denying that it is his promise; in other words, proof of his signature is dispensed with. This act constitutes “ all instruments of writing evidence of the debt, promise, or undertaking of the party,” and the defendant cannot gainsay it, unless by plea and affidavits, &c. This statute is in derogation of the common law, and must be construed strictly. Take Blackstone’s Guides of Interpretation, the old law, the mischief and the remedy provided. The mischief was that great hardship often resulted to plaintiffs from the inability or inconvenience of proving the defendant's hand-writing to any instrument which might be the foundation of their suits. The old law required such proof to be made, and the remedy was to dispense with it, unless the defendant,.would deny the execution of the instrument by plea and affidavit. It is submitted whether this statute intended to make the instruments of writing evidence of anything more than they contained. In other words, whether it dispensed with the proof of the consideration where the consideration does not appear upon their face, and where the common law required such proof.
    Gordon acknowledges to be due the bearer $5000 of Brandon money. If the court should he of opinion that this is a promissory note, then it imports a consideration; if not, then the statute makes it evidence against Gordon for what is expressed on its face. But it expresses no consideration, and therefore it is no evidence of a consideration. If Gordon had acknowledged this debt to be owing for “ value received,” then it would have been unnecessary to have shown what this value was. He WjSuld have admitted a consideration on the instrument. The following authorities are express, that Parker should have.vshown the consideration of this promise. Jerome v. Whitney, 7 John. 322. Bank of Albany v. Topping, 9 Wend. 275. Chitt. Bills, 549.
    4. The verdict of jury was without evidence, inasmuch as the value of Brandon money was not proved. (The court will - observe that one of the counts of the declaration avers a value, &c.) But of this we have spoken already.
    We conclude, therefore, that we have maintained all of the grounds assumed, both upon principle and authority, and that the judgment of the court below ought to be reversed.
    
      W. Gr. Thompson, for plaintiff in error.
    This cause is brought up by writ of error from the circuit court for Wilkinson county. The action is based on the due-bill of the plaintiff in error, for five thousand dollars, payable in Brandon' money. Yerdict and judgment for plaintiff below.
    The obligation sued on in this case calls for money of some description. It is contended, in reply to the argument of the plaintiff’s counsel, that the courts of'the country can know but one kind of money.
    There are several common counts in the declaration, and this court cannot know that there was nob sufficient testimony of a proper kind before the jury to justify the verdict in this case, unless the whole evidence in the cause is set out by bill of' exceptions. And it is contended that the bills of exceptions filed in the record of this cause cannot be noticed by the court. It is not stated, in any one of them, at what term, in what court, or in what cause they were taken. A bill of exceptions is nothing more than a certificate given by the presiding judge, and, like all other certificates, it must be complete in itself for all purposes for which it is designed. Now what is the object or purpose of a bill of exceptions I It is that the appellate court may be informed of'the proceedings had in the court below in relation to a particular cause, in order that the appellate court may determine as to the correctness or the incorrectness of the judgment given in that cause by the court below. It is ne'cessary, then, for this purpose, that the appellate court should be informed, not only of certain proceedings generally in the court below, but also in what cause those proceedings were had. And as this is the purpose of a bill of exceptions, it is the duty of the judge presiding below to certify in what cause the proceedings, set out in the bill of exceptions, were had. It is equally necessary that the appellate court should know the one and the other. And no reason whatever can be assigned why the proceedings should be certified with more formality and solemnity than the- particular cause in which they were had. If the statement of the clerk be sufficient to show the particular cause, why may it not be equally sufficient to show what were the proceedings? In this case, the clerk, after reciting the judgment, states, that thereupon “ The following bills of exceptions were filed.” That may be true; and yet no bill of exceptions may have been taken in this cause, and the bills of exceptions filed in this record may have been taken in some other cause. The certificate of the judge does not, of itself, make a bill of exceptions a part of the record. There may be any number of bills of exceptions certified during a term of the court, without one of them being incorporated into any of the records. „ The filing of a bill of exceptions is not, in fact, done by the order of the court. The party taking it may have it filed in the record or not, as he finds he may or may not have use for it. It is the duty of the clerk to know in what cases all orders and judgments of the-court are made, and to enter them on the minutes, and in the records of the causes, to which they respectively appertain. But a bill of exceptions is neither an order nor a judgment of the court. And if the party, who takes it, declines using it, the clerk is not bound to know anything about it; is not bound to note it on the minutes like a judgment or an order of the court. It is the duty of the clerk to file a certified bill of exceptions in the record of a cause, when required to do so, but it is not his duty to notice the act of the judge in certifying the bill of exceptions, and to know to what cause it relates. And so a statement made by him that a certain bill of exceptions was filed in a particular record, does not show that the bill of exceptions was, in fact, taken and certified in the cause embraced and set out in that record. That must appear by the bill of exceptions itself. It is as necessary that that fact should be certified by the judge, as that he should certify the proceedings. On an appeal from the judgment of a circuit court overruling a motion to quash a forthcoming bond, this court will not notice a copy of a bond filed on the record, unless it appear by a bill of exceptions that that is the identical bond to which the motion and judgment relate; and notwithstanding the clerk may state it to be so. 'And why not? Because it must appear with that degree of certainty, which the certificate of the judge alone can give it, that the bond exhibited was connected with that particular motion. But if the bill of exceptions does not point out any particular case in court, how is such certainty to be attained 1 It were as well to rely on the statement of the clerk for ascertaining what evidence was introduced inn cause, as to rely on his statement for ascertaining in what particular cause such evidence was introduced. ' .
   Mr. Justice ThacheR

delivered the opinion of the court.

This is error to Wilkinson county circuit court.

It was an action of assumpsit founded upon the due-bill of the plaintiff in error for’ $5000, payable to the bearer, in __ Brandon money,” and dated thé 26th day of January, 1839.

The delaration contained an averment that the term Brandon money, meant the notes of the Bank of the Mississippi and Alabama Railroad Company, at Brandon, Mississippi. The defendant below requested the court to charge the jury that the measure of damages in the case was the specie value of the Brandon Bank paper at the maturity of the due-bill, with interest, which charge the court refused to give. We see nothing in the other errors assigned which calls for our consideration.

. The contract was to pay in a certain species of bank notes, and their value at .the time of the date of the due-bill should have been ascertained by the assessment of the jury as the measure of the damages, together with interest. This was so decided by this court in the case of Samuel Bonnell v. Covington & Winston, January term, 1843. That action was founded upon a note payable in the current notes of either of the banks of Natchez, or of the Union Bank.” The court there say, “If there was any difference between the current notes of those banks, if there were any such, and specie, it may be estimated by the jury, and the defendants allowed the benefit of such difference. Their verdict must be for the value of the current notes in specie, at the time payment should have been made.”

Tire objection taken by the defendant in error that the bills of exception are not entitled of any court or cause, &c., we do not think available. The bills of exceptions are regularly certified by the clerk of the court below, in the record, as appertaining to the cause, «fee., of which the record is entitled.

The judgment must be reversed, and a new trial awarded.  