
    John S. Mitchell vs. Mahlon T. Hewitt.
    A note payable in the currency of the state of Mississippi, is payable in specie.
    In an action on a note, payable in the currency of the state of Mississippi, the defendant’s plea, that he was ready, at the time and place, to pay in the notes of the Mississippi Bank, current at the time, accompanied with a tender of the notes, was held, on demurrer, to be bad.
    In error from the circuit court of Warren county. Hon. George Coulter, judge.
    This was an action of assumpsit, founded on the promissory note of the defendant for $468 10, dated April 21, 1839, payable nine months after date, to the order of Street & Mitchell, in the currency of the state of Mississippi, payable and negotiable at the Commercial Bank of Natchez, and by said Street &. Mitchell indorsed to the plaintiff. The declaration contains a count on the note, also a count for five hundred dollars for money had and received, and a count on an account stated for a like sum. The defendant plead the general issue, and filed two special pleas, alleging that he was ready, at the time and place, to make payment of the note, in the currency of the state of Mississippi. To these pleas the plaintiff demurred on the ground, that there was no proferí in curiam of the sum due. The defendant confessed the demurrer, and judgment of respon-deat ouster was awarded. Leave was then granted him to withdraw his pleas, and file pleas of tender.
    The defendant then filed a third plea, which was as follows :' “And the said defendant comes and defends the wrong and injury, when, &c.; and for plea in this behalf, defendant says, actio non, because he says, that on the day the note here sued on became due and payable, to wit, the 24th day of January, 1840, and before the commencement of this action, at the Commercial Bank of Natchez, at, to wit, the county aforesaid, the said defendant was then and there ready and willing to pay the same, at the bank aforesaid, according to the tenor and effect of said note here now sued on. But neither the said plaintiff, nor any person in his behalf, were there ready, on the said day, to receive the same; and said defendant from thence hitherto hath ever been, and still is, ready to pay the same, according to the tenor and effect of said note. And the said defendant brings into court, now here, the said sum of $468 10, in the notes of the Mississippi Railroad Company, then and there current in the state of Mississippi, in which currency,- at the maturity of said note, the said defendant avers the sum of money, in the said note specified, was to be paid, according to the tenor and effect thereof; now into court here rendered, to be paid to the said plaintiff if he will receive the same; and this the said defendant is ready to verify, <fcc. Wherefore he prays judgment, if the said plaintiff shall have or maintain his aforesaid action thereof against the said defendant, because of the nonpayment of the said sum of $468 10, in the plaintiff’s declaration mentioned, &c.”
    The court overruled the plaintiff’s demurrer to the above plea, and gave judgment for the defendant; from which decision the plaintiff prosecutes this writ of error.
    
      Van Winkle and Potter, for plaintiff.
    I. The note is a promise to pay dollars and cents “ in the currency of the state of Mississippi.” What is the legal import of the contract ?
    1. This is a contract to pay lawful money of the United States. The word “ currency ” means current money, which is gold and silver. Dugan v. Campbell, 1 Ohio Cond. Rep. 56. The words “current” and “lawful” are synonymous; money is “ lawful ” when it is a legal tender, and not otherwise. Wharton v. Morris, 1 Dali. 125. The word “ current,” as applied to bank notes, means such notes as are equal to cash, to gold and silver. Keith v. Jones, 9 Johns. R. 120; Judah v. Harris, 19 Johns. R. 144. The “currency of the state of Mississippi ” is declared and regulated by congress; gold and silver are the currency of this state, as a member of the federal union. Federal currency, being generally known and used, “as the measure of all contracts,” parties are presumed to agree for payment in lawful coin, if no other currency is specified in the contract; and, unless the intended currency is specially designated, this presumption in favor of specie must prevail against all aver-ments and proofs to the contrary.
    Bank notes are not, in any sense, “ the currency of the state of Mississippi; ” they are not issued by the state, nor are they, by any authority of law, the currency of the state. Current bank notes, that is, bank notes at par, may, by common usage, be received and paid as cash or lawful coin ; but no depreciated bank paper can be current, or of the currency of the slate. Clipped and defaced coins, not being current, are not of the currency ; a dollar in paper is, in no sense, a part of the currency, unless it is equal in value to a silver dollar. The word “ currency ” implies uniformity and sameness of relative value in the circulating medium; current gold and silver are an unchanging standard of uniform proportionate values.
    Now, although par bank notes are, by common usage, current as so much cash in lawful money, a promise to pay dollars and cents in current bank notes is a contract to pay in current specie, and not in this customary currency of coin and bank notes; and no averment or proof of the usage is allowed to vary or explain the contract. Such a contract is for the payment of a specie value, and the intent of the parties is effected by enforcing payment in current coin. Keith v. Jones, 9 Johns. R. 120; Judah v. Harris, 19 Johns. R. 144. So that whether this note is a promise to pay in lawful coin, or in a currency composed of current specie and par bank notes, or of par bank notes only, the plaintiff is still entitled to demand federal money.
    This note is, then, a promise to pay in lawful coin, and not “in the notes of the Mississippi Railroad Company,” or in any other bank paper. Such is the plain tenor of the contract. “ It is not allowable to interpret what has no need of interpretation.” Chit, on Cont. 22. If it be uncertain whether the note is payable in federal money or in Mississippi bank paper, the plaintiff may demand gold and silver. In cases of doubt, contracts are construed liberally against the promisor. Chit, on Cont. 21. This contract is not, prima facia, a promise to pay in depreciated bank paper, nor can it be so interpolated, by construction or averment, as to become a promise to pay “in the (depreciated bank paper) “currency of the state of Mississippi.”
    2d. If this be a promise to pay in a paper currency, the amount to be paid must be determined by the value of that currency at the date of the contract. Wharton v. Morris, 1 Dali. 125; Story on Bills, 495, 496; Chit, on Bills, 433. By the note, z, present debt was created, payable in futuro; the parties refer to a currency, a thing in esse at the date of the promise, as the subject-matter of the contract. The value of that currency at the date of the contract, must determine the extent of the liability created by the promise. The plaintiff seeks the value of that currency, as it existed at the time when the parties adopted it as the measure of the contract. The currency promised was to be paid as money; the decisions, on contracts to pay in “bank-notes,” as a commodity, are not in point.
    II. What are the defects of the plea ?
    1st. It contains no proferí of the “ currency ” specified in the note. This is a cause for general demurrer. . Carley v. Vance, 17 Mass. Rep. 389; Walcott v. Van Santvoord, 17 Johns. R. 248. The proferí in a plea of tender relates to an existing subject-matter; to a thing in esse at the date of the plea. Down-man v. Downman, 1 Wash. Rep. 29-38. It is not shown that these notes were then current, nor is there a profert of any “currency.” The fact that these “notes” were then “current” is no proof that they were of “ the currency of the state of Mississippi.” The note is for dollars and cents; the Railroad Company was prohibited to issue notes “of a less denomination than five dollars.” Coll. Laws Missis, p. 703, §5. And so the plea is false in fact.
    2d. It does not show that the defendant was ready at the proper hour for a lawful tender, nor that these notes of the Railroad Company were “ current ” at that hour.
    The defendant should have been at the bank, ready to pay at 
      
      the last banking hour on the day for payment. Church v. Clark, 21 Pick. 310; Staples v. Franklin Bank, 1 Met. Rep. 50, 51, 56; Planters Bank v. Markham, 5 How. 410; Fleming v. Fulton, 6 How. 484, 485; Osborn v. Moncure, 3 Wend. 170; Jouett v. Wagnon, 2 Bibb, 269; Rutland v. Hodgson, 2 Stra. 777. He should have averred the usage of the bank, and that “ he came accordingly, and staid so long." Lancashire v. KiUingworth, 2 Salk. 623; 1 Ld. Raym. 687, 688.
    The plea makes no averment of the last banking hour, either to show that the defendant was ready at the proper time, or that this fluctuating currency, pecunia dimidice horce, was current at the very hour when only a lawful tender could he made.
    3d. It does not show that, at the date of the plea, these notes were of any value whatever; nor does it appear that the defendant ever had these notes until the filing of his plea. A tender, or the mere readiness of the debtor at the day and place of payment, will not discharge or impair the principal debt. If these notes were the currency of the contract, the plaintiff is entitled to their value, as it existed at the date, or at the maturity, of the note; for that value was the subject-matter'— the debt of the contract. 1 Wash. Rep. 29-38. The mere fact that these notes were brought into court is no proof that they were worth that value.
    The extent of the rule in favor of the debtor is, that he shall not be injured by the non-attendance of the creditor at the day and place for payment. This rule does not permit the defendant to speculate against the plaintiff, and discharge himself from the debt by a profert of worthless bank-notes, “ bought by the measure” at the date of his plea. If the defendant had not been ready at the time and place, the plaintiff might have demanded the Value of this currency as it existed at the date of the note, or on the day for payment; and, as that value, with interest, would then have been the measure of damages against the defendant, although this currency might thereafter have appreciated a hundredfold, so that value must still determine the measure of the recovery. The result would be the same, although the defendant had these identical notes, ready to pay them at the day and place, and had incurred a total loss by a retainer of them until the date of the plea; for the same rule must apply equally for or against either party. Such a retainer could not benefit the debtor: why should it prejudice .the creditor? The maxims of law and justice alike require a party so to use his advantage as not to impair the rights of others.
    4th. The plea begins and concludes in bar of the whole action, but answers only the first count of the declaration. It is bad on general demurrer. Phelps v. Lowles, 19 Wend. 549; Lattin v. Vail, 17 Wend. 188; Chit. PI. 554, 586.
    III. The judgment is in bar of the whole action. It should have been limited to the first count of the declaration. The first pleas of tender were manifestly insufficient. The plaintiff is entitled to judgment final in this court.
    
      Hewitt and Carson, for defendant in error.
   Mr. Justice Thacheb.

delivered the opinion of the court.

Writ of error to Adams county circuit court.

This is. a suit upon a promissory note for $468 10, payable “ in the currency of the state of Mississippi.” Defendant filed the plea of non assumpsit and two special pleas. Plaintiff joined issue in the plea of non assumpsit, and filed a demurrer to the special pleas, which was confessed by defendant, who also withdrew his pleas, and proffered judgment of respondeat ouster. Defendant then filed a plea of tender, “in the notes of the Mississippi Railroad Company,” to which the plaintiff filed his special demurrer.

Properly speaking, the term “ currency of the state of Mississippi,” can only mean that which has been declared to be a legal tender, because currency implies lawful money. Wheaton et al. v. Morris et al. 1 Dall. 133. In a suit for lawful money, paper money, unless shown to be a legal tender, will not be permitted to be brought into court. It does not appear that the notes of the Mississippi Railroad Company are a legal tender, or that, on the face of the note, the contract refers to such money. Shelby v. Boyd et al. 3 Yeates, 321.

The judgment of the court below is therefore- reversed, the demurrer to the plea sustained, and judgment directed to be entered up against the defendant for the amount of the note, its interest, &c.  