change. Such was the scope and design of its provisions. It is a remedial, not a restraining statute. It applies only to instruments that were not negotiable by the common law, or the custom of merchants. Bank notes were negotiable at common law, without reference to any British statute. They were regarded as cash, and passed from hand to hand, without any other evidence of title in the holder than what arose from the possession.

In the leading case of Miller v. Race, 1 Burr. 452, it was decided that a bank note, though stolen from the owner, became absolutely the property of the party who had received it for value, without notice of the robbery. Lord Mansfield, in delivering the judgment of the court, said: "It has been very ingeniously argued by Sir Richard Lloyd, for the defendant. But the whole fallacy of the argument turns upon comparing bank notes to what they do not resemble, and what they ought not to be compared to, viz., to goods, or to securities, or documents for debts. Now they are not goods, not securities, nor documents for debts; nor are so esteemed, but are treated as money, as cash, in the ordinary course and transaction of business, by the general consent of mankind; which gives them the credit and currency of money, to all intents and purposes. They are as much money as guineas themselves are, or any other current coin, that is used in common payments, as money or cash. They pass by a will, which bequeaths all the testator's money or cash, and are never considered as securities for money, but as money itself. Upon Lord Ailsbury's will nine hundred pounds in bank notes was considered as cash. On payment of them, whenever a receipt is required, the receipts are always given as for money, not as for securities or notes. So on bankruptcies, they can not be followed as identical and distinguishable from money, but are always considered as money or cash." See also, to the same effect, Anonymous, 1 Salk. 126, pl. 5; and Wright v. Reed, 3 T. R. 554. Bank notes, then, being negotiable by the common law, by delivery merely, are not within the operation of our statute. The possession of such notes affords prima facie evidence of title in the holder; and he is entitled to maintain an action on them, unless it is shown that he obtained the possession mala fide.

The next question relates to the sufficiency of the second plea, as amended. This plea recites a contract between the bank and Curtiss & Mitchell, by the terms of which the bank, on the security of the assignment of ninety thousand dollars of its

stock, loaned sixty thousand dollars in its notes for one year to Curtiss & Mitchell, who agreed to make such use of the notes as would best prevent their return to the bank for redemption, and provide funds to redeem such of them as should be presented for payment; and the bank was to pay an interest of six per cent. on all sums deposited with it for the redemption of the notes until used for that purpose, and Curtiss & Mitchell were to pay three per cent. interest on all the notes put in circulation by them. The plea then alleges that the notes sued on were received by Curtiss & Mitchell, in pursuance of the contract, who, instead of putting them in circulation in the manner best calculated to prevent their return to the bank, and providing funds for their redemption, fraudulently delivered them to the plaintiffs, by whom they were so received, for the purpose of being put in suit against the bank in the name of the plaintiffs, but for the exclusive benefit of Curtiss & Mitchell. In our opinion, the facts stated in the plea constitute no bar to a recovery on the notes. By their delivery under the contract, the notes became the property of Curtiss & Mitchell. As the owners, they had the legal right to dispose of them in any way they pleased. The fact that they did not fulfill the stipulations of the contract, which were to be performed after the receipt of the notes, did not divest them of their title, nor disable them from transferring that title to others. The notes were loaned to Curtiss & Mitchell as so much cash, not deposited with them for a special purpose. The delivery was absolute, not qualified; the title was complete, not conditional. The title carried with it a present legal right of action against the bank.

If Curtiss & Mitchell failed to perform the covenants in the contract, they are liable to the bank for the damages it sustained thereby; but the breach of those covenants can not be pleaded in bar of an action on the notes. It may be that the damages could be set up by way of set-off, if this suit was in fact brought for the benefit of Curtiss & Mitchell. But that question is not presented. The plea attempts to defeat the action solely on the ground that Curtiss & Mitchell have not complied with some of the stipulations of the contract-stipulations that were to be performed after their title to the notes was acquired, and upon the fulfillment of which the continuance of that title in no degree depended. There is another question reserved on the record. Some of the notes are payable on demand, at the office of the bank; and, as to them, it is insisted that no cause of action can accrue until the notes have been there presented and

payment demanded. It is well settled in this country that, in an action against the maker of a note, made payable at a particular place, it is not necessary to aver or prove a demand of payment at such place. If the maker was ready at the time and place to make payment, he may plead that fact as he would plead a tender, in bar of damages and costs, by bringing the money into court: Butterfield v. Kinzie, 1 Scam. 445 [30 Am. Dec. 6571; Wallace v. McConnell, 13 Pet. 136; Caldwell v. Cassidy, 8 Cow. 271; Ruggles v. Patten, 8 Mass. 480. Nor is a presentment necessary on a bank note, payable on demand at a particular place. The bringing of a suit is a sufficient demand of payment. If the bank, in such case, shows that it was ready to make payment at the place, when the suit was commenced, and brings the money into court, it discharges itself from interest and costs: Haxton v. Bishop, 3 Wend. 13.

We are satisfied with all of the rulings of the county court, and affirm its judgment, with costs.

Judgment affirmed.

LAW OF BANK BILLS.-In England, bank notes are said to owe their origin to the statutes, 5 Wm. & M., c. 20, secs. 19, 20, 29, and 8 and 9 Wm. III., c. 20, sec. 30. By the first of these statutes, power was given to the king to incorporate the persons who should subscribe towards the raising and paying into the receipt of the exchequer the sum of one million two hundred thou sand pounds, by the name of "The Governor and Company of the Bank of England:" Ch. Bills, 523. Various subsequent statutes have been passed conferring special privileges upon the corporation thus created. The English cases, relating to bank notes, generally refer to Bank of England notes, and Byles says: "In law books a bank note is commonly taken to mean a Bank of England note:" Byles on Bills, 9. It is sometimes important to bear this fact in mind when considering the language of the English authorities, for Bank of England notes stand, in many respects, upon quite a different footing from that of the notes of banks in this country. In referring to the language of Lord Mansfield, in Miller v. Race, 1 Burr. 452, quoted by Chief Justice Treat, in the principal case, Daniel says: "These remarks, however, could only apply in their full significance to Bank of England notes, which, by statute, take the place of coin; for other bank notes, while in the ordinary transactions of business they take the place of and are treated as cash or money, are nevertheless essentially distinguishable from it:" 2 Daniel on Neg. Inst., sec. 1672. Notes issued by banks are in England generally called bank notes, while in this country they are more frequently called bank bills. Bank notes and bank bills are, however, regarded as terms of the same meaning: Morse on Banking, 2d ed., 458. And a bank note is, even in an indictment, sufficiently described as a bank bill: Eastman v. Commonwealth, 4 Gray, 416.

BANK BILL IS SIMPLY THE PROMISSORY NOTE of the corporation that issues it: Morse on Banking, 2d ed., 458; Byles on Bills, 9. And it may be so described in an indictment: Commonwealth v. Thomas, 10 Gray, 483; Commonwealth v. Simonds, 14 Id. 59. The most important distinction between

bank bills and ordinary promissory notes payable on demand is that the former are issued for the purpose of passing current, for an indefinite period, as money in ordinary business transactions. Morse on Banking, 2d ed., 459. Bank bills are usually made payable to bearer; but sometimes they are made payable to a particular person or bearer. The two forms are, however, practically identical: 2 Daniel on Neg. Inst., sec. 1665; Morse on Banking, 2d ed., 479; Bullard v. Bell, 1 Mass. 243; Bank of Kentucky v. Wister, 2 Pet. 318. In delivering the opinion of the court in the case last cited, Johnson, J., said: "This court has uniformly held that a note payable to bearer is payable to anybody, and not affected by the disabilities of the nominal payee." They must be payable on demand: Ch. Bills, 523; Morse on Banking, 2d ed., 459; 2 Daniel on Neg. Inst., sec. 1666. Banks sometimes issue notes payable at a future day. Such notes are called post-notes, but they are not bank bills or bank notes, in the proper acceptation of the term. Bank bills are generally required to be signed by the president and cashier of the bank. In this country they are generally printed on a peculiar kind of paper and adorned with vignettes. This is done for the purpose of making them difficult of imi tation, and to enable the bank to detect counterfeits. But a bank bill printed on a piece of plain paper would be equally as valid and binding on the bank, as one adorned in the most artistic manner. Bank of England notes are on white paper containing nothing but the printing and a water-mark.

THE RIGHT TO ISSUE BANK BILLS was, prior to the passage of the national banking act, regulated by the statutes of the several states. Under these state laws, the power to issue bills was usually confined to certain incorporated institutions or to persons acting under a general banking law, and none but such persons were permitted to issue notes intended to circulate as cur rency: 2 Daniel on Neg. Inst., sec. 1668; Morse on Banking, 2d ed., 458.

BANK BILLS ARE NOT MONEY in a legal sense, though they are often spoken of as money in a popular sense, and are for many purposes conventionally used in its stead. "Bank bills are not money in the strict sense of the term; that is to say, they are not legal tender; though they would pass as cash under a bequest. They pass current as if they were money only by virtue of a general understanding or tacit agreement to that effect. No state even has power to render them such by any method of legislative enactments. A law undertaking to do so would be simply void, as directly contravening article 1, section 10, of the constitution of the United States, which declares that no state shall make anything but gold or silver coin a legal tender in payment of debts:" Morse on Banking, 2d ed., 460. This constitutional lim. itation on the power of the state legislatures, prohibiting them from making bank bills a legal tender in payment of debts, has necessarily led the courts of this country to regard bank bills in a somewhat different light from that in which they are regarded by the courts in England, where parliament is recognized as having the power to make them a legal tender. Bank bills pass as cash under a bequest in a will: Chapman v. Hart, 1 Ves. 271; Byles on Bills, 9; Morse on Banking, 2d ed., 460. In Wright v. Reed, 3 T. R. 554, bank notes were decided to be money within the annuity act. The language employed by the judges in deciding that case shows how bank notes are regarded in England. Lord Kenyon, C. J., said: "Bank notes are considered as money to many purposes." Ashurst, J., said: "Bank notes are money to all intents." And Buller, J., said: "Bank notes pass in the world as cash." A few cases in this country have gone nearly as far as the English cases in holding that bank notes are money. Thus in Crutchfield v. Robins, 42 Am. Dec. 417, it was decided that current bank notes are money, and that a pay.

ment made in them to the clerk of the court, under an execution, is a good payment. This, however, is not the doctrine sustained by the greater weight of authority in this country, as will be shown under a subsequent head.

Bank bills, in this country, subserve the purposes of money, in the ordinary course of business, by virtue of the mutual consent of the parties to a contract. It is hardly correct to say that they pass current by reason of the binding force of common usage. If that were the case, the party to whom they were tendered would be bound to take them. But this he can not be compelled to do. He has an undoubted right to refuse to accept them as money. They do not seem, under any circumstances, to possess the absolute legal character of money. Nor can we with propriety say that they are the complete representatives of the legal currency of the country. It would be preposterous to say that the bills of a bank are the representatives of its money, when in many cases the banks have been permitted to issue their notes to an amount twice as great as the amount of money possessed by them. The question whether or not bank bills are to be considered as money would seem to depend more upon the effect that has been produced by the transfer of them than upon any binding force of common usage in relation to them. As said by Black, J., in Corbit v. Bank of Smyrna, 30 Am. Dec. 635: "If they have worked a payment or satisfaction, actual or legal, they are in such case considered as money, and equivalent to so much coin. But if such effect be not produced, then, in that case, they are not held as money." These views are sustained by the great weight of authority in this country: 2 Daniel on Neg. Inst., sec. 1672; Coxe v. State Bank, 14 Am. Dec. 417; Corbit v. Bank of Smyrna, 30 Id. 635; Armsworth v. Scotten, 29 Ind. 495; Prather v. State Bank, 3 Id. 356; Hallowell and Augusta Bank v. Howard, 13 Mass. 235; Bullard v. Bell, 1 Id. 243; United States Bank v. Bank of Georgia, 10 Wheat. 333.

OFFICER CAN NOT RECEIVE BANK BILLS in payment of a judgment or to satisfy an execution. No sheriff, marshal, clerk, or constable has a right to receive payment of a judgment or satisfaction of an execution in anything but gold or silver, or the legal currency of the country: Griffin v. Thompson,

2 How. 244; McFarland v. Gwin, 3 Id. 717; Prather v. State Bank, 3 Ind. 356; Armsworth v. Scotten, 29 Id. 495; Hallowell and Augusta Bank v. Howard, 13 Mass. 235; Coxe v. State Bank at Trenton, 14 Am. Dec. 417.

POSSESSION OF BANK BILL IS PRIMA FACIE EVIDENCE OF TITLE, and the holder can sue and recover simply by virtue of his possession, unless the bank can prove positively that the possession was obtained in bad faith: Morse on Banking, 479; Byles on Bills, 165; Ch. Bills, 524. The holder of a bank note is not affected by any previous fraud, unless he was privy to it: Id. 525. A bank note is not a contract with any particular person, but with any one who may become the lawful holder of it: Ballard v. Greenbush, 24 Me. 336. But to enable the holder of a bank bill to retain it as against the true owner, he must have come by it in the usual course of his business and for a full and fair consideration. He must have parted with something on the faith of the bill: Goldsmid v. Lewis County Bank, 12 Barb. 407; Morse on Banking, 478. And a bona fide holder does not acquire such an absolute title that he can transmit it to a purchaser who has notice that the bill was stolen: Olmstead v. Winsted Bank, 32 Conn. 278. But it has been decided that one who takes a bank note bona fide and for a valuable consideration, in the usual course of his business, having no notice that the party from whom he takes it has no title, is entitled to recover the amount of the note, although he had, at the AM. DEO. VOL. LII-29