
    Deberry vs. Darnell and Reader.
    Debt will not lie upon a note to be paid in North Carolina bank notes.
    A note payable in North Carolina banknotes is negotiable, and the endorser is liable, in case, to the specie value of such notes.
    This was an action of debt, against the maker and endorser of a note under seal, in the following words: “On the first day of November next, I promise to pay John Reader, or order, one hundred and sixty-seven dollars fifty cents, for value received. Witness my hand and seal, this twenty-ninth day of April 1824. To be paid-in North Carolina banknotes.” The note,is set out in the declaration, which is demurred to; to the demurrer there is a joinder.
   Catron, J.

delivered the opinion of the court.

Will debt lie upon this note? This court decided the action of debt would not lie, in Gamble vs. Hutchinson, Peck’s Rep. 180. This case has been since followed, and cannot be departed from. Bank notes are treated as depreciated cash, and their value must be ascertained by the assessment of a jury, which cannot be done in this form of action.

That the note is negotiable, and the endorser liable in an action of case, sounding in damages, we have no doubt. Still he is as liable to pay, on the contingency of the principal failing and notice thereof given, only to the extent the principal was, to wit, the specie value of the bank notes.

It is averred in the declaration, that North Carolina bank notes were of equal value with specie. If the averment helps the declaration in this case, debt may be brought upon a note payable in horses, or corn. No issue can be found upon the averment; and why? Because was such an issue taken, the jury could of course find less than the sum declared for; the action would sound in damages, and lose the features of an action of debt, which always goes for a stated and certain sum.

Judgment affirmed.  