Foquet v. Hoadley , 3 Conn. 534 ( 1821 )

Hosmer, Ch. J.

The defendant, in his first and third pleas, alleged, that he transmitted to the plaintiff, three fifty dollar treasury notes, and that the plaintiff received them, in full1 satisfaction of the note in suit.

To establish these facts, he offered in evidence the deposi- j tion of Everitt Howard, who testified, that the plaintiff requested of Him, to send him cash per mail. Treasury notes are not cash ; and the testimony offered conduced to prove no averment contained in the aforesaid pleas. The deposition, therefore, was rightly rejected,

In the second and fourth pleas, the defendant averred, that he sent to the plaintiff cash or money, by the ordinary course of the mail; and, to evince this allegation, he offered the testimony of one Betts, shewing that treasury notes were transmitted. This testimony was repelled most justly, for this very plain reason, that treasury notes are not cash.

A promissory note, payable in money, cannot be discharged, by the act of the debtor, without the co-operation of the creditor, unless in gold and silver coin. Const. U. S. art. 1. sect. 10. Bank notes are not a legal tender, if the creditor objects to receive them. Wright v. Reed, 3 Term Rep. 554. Grigby v. Oakes & al. 2 Bos. & Pull. 526. The reason of this is conclusive ; they do not fulfil the contract; and it is the province of courts, to enforce contracts, as the parties have made them. I am aware of the decision made in a sister state, (Keith v. Jones, 9 Johns. Rep. 120.) in which it is said, that bank-paper, in conformity with common usage and understanding, is regarded as cash ; and that the same observation has been made in other cases. Miller v. Race, 1 Burr. 452. Grant v. Vaughan, 3 Burr. 1516. Notwithstanding the truth of the remark, evinced by constant experience, that bank bills are voluntarily received as cash, I cannot admit, that he who assumes to pay gold and silver coin, can compel his creditor to receive in satisfaction bank bills of any, or either, of the numerous banks in our country. The creditor may always say, and this should be an impenetrable shield, “ Non hcec infcedera veniN

Let the law be as it may, with respect to bank bills, which, by usage, are treated as cash, and are the common currency ®f our country, there is no analogy between them and treasury notes. The latter are neither cash nor currency ; and there is no usage to sanction, or even give plausibility to, their being considered as such.

The other Judges were of the same opinion.

New trial not to bfe granted.