them as though they were gold and silver; the great mass of the community never thinking whether they are redeemable or not, but knowing that they pass current in ordinary times for the same amount in gold and silver coin, besides being more portable. They are so far treated as money that the holder of one stolen from a bank is not obliged to show how he came by it in order to recover upon it. But banknotes are not, strictly speaking, money, and cannot be in the true sense a legal tender.2 Nor can bank-bills be brought into court as cash if seasonably objected to. And bills, notes, or checks, not current at their par value nor redeemable on presentation, are not a good tender, whether objected to at the time of payment or not.4 Yet current bills which are redeemed at the counter of the bank on presentation, and pass at par value in business transactions at the place where offered, may become by a corresponding acceptance a good tender.5 So, for that matter, upon mutual intent, may be a check, or even foreign money.6 For the principle here applied is that the creditor elected to receive the thing paid over as money, and that such was the mutual understanding at the time of payment. Accordingly we find that the "money count" in pleading – so called because founded on an express or implied promise to pay money in consideration of a pre-existing debt-may be supported under such circumstances, though no "money" was received by defendant, but only bank-notes or other property which he received as money. And it may be added 1 See Wyer v. Dorchester, &c. Bank, 11 Cush. 51. But see De la Chaumette v. Bank of England, 9 B. & C. 208. This is a privilege which applies to negotiable instruments generally. See vol. ii. part iv. c. 1. 2 Hallowell Bank v. Howard, 13 Mass. 234; Pickard v. Bankes, 13 East, 20; Morse Banks, 397. 3 Hallowell Bank v. Howard, 13 Mass. 234. Ward v. Smith, 7 Wall. 447; that the words "bank-bill" and "bank-note" are often used indifferently and with the same meaning.1 § 352. "Money," "Cash," etc., in Testamentary Trusts, and Colloquial Use. In cases arising upon the construction of a will (where a testator's intent is the pole-star for judicial guidance), we often find considerable latitude allowed in determining what shall pass as a bequest of "money." Under a bequest of "all the money which shall be left at my decease," courts have gone so far as to decide, upon a general construction of the whole will, that promissory notes and other securities for the payment of money pass.2 And some have said that money is a genus that comprehends two species, ready money and money due. Certainly current bank-notes on hand and money balances due at the bank, would frequently be treated as money, out of regard to the testator's intent.4 "Cash," and "ready money" or "money in hand," are terms which require, however, a stricter interpretation. Where a rule is relaxed out of regard to the intent of a testator (who cannot be supposed to know, ordinarily, just how much money will be on his person in coin, rather than in a bank, when he dies), we cannot well construct a definition from the precedents; and "money," as corporeal rather than incorporeal property, as a chose in pos 1 Eastman v. Commonwealth, 4 Gray, 416. 2 Morton v. Perry, 1 Met. 446. 3 See Shelmer's Case, Gilb. Eq. 200. 4 Mann v. Mann, 1 Johns. Ch. 231; Dabney v. Cottrell, 9 Gratt. 572. 5 See Beales v. Crisford, 13 Sim. 592. Notwithstanding the varying decisions of the courts as to what passes under a bequest of "money," they are certainly less inclined to include promissory notes, bonds, mortgages, and other securities, than current bank-bills and deposits at a bank. See cases cited in 2 Redf. Wills, 2d ed. 103 et seq. Not even public stocks can be strictly deemed money. Gosden v. Dotterill, 1 My. & K. 56. But in an English case, Bank of England notes were lately included, with guineas and sovereigns, while country bank-notes were treated as standing on the same footing with promissory notes, and so excluded. Brooke v. Turner, 7 Sim. 671. We have already noted that Bank of England bills have served in England as a legal tender. Supra, $ 350. Under a statute which permits of sales for "cash" only, ready money transactions are intended and sales on credit are excluded. 136 U. S. 256. Such, too, is the colloquial distinction. session rather than a chose in action, as a lawful tender for debts, a medium of exchange and a standard of value, rather than something current and redeemable, is quite different from that vague ideal thing "money" which lurks in a dying man's brain and so too occurs in colloquial use, as something almost synonymous with personal property and comprehensive enough to embrace the general residue of one's personal estate.1 CHAPTER III. DEBTS IN GENERAL. § 353. Chattels to be hereafter considered are Incorporeal. From corporeal things personal, or choses in possession, we now come to incorporeal things personal or choses in action; and having considered sufficiently those kinds of property which one can touch and see, whose enumeration is needless since their legal incidents are for the most part the same, we shall for the remainder of the present volume devote ourselves to property of that description which cannot, strictly speaking, be seen, touched, or handled, and which has only an ideal existence. This latter kind gives rise to various 1 See 1 Jarm. Wills, 1861, 730737, and cases cited; Legg v. Asgill, cited 4 Russ. 369; 2 Redf. Wills, 2d ed., 103 et seq. Once more: since bank-bills are carried about on one's person as cash, and circulate in a community on the peculiar footing of a currency, - redeemable or irredeemable, yet seldom redeemed on the holder's demand, but rather taken by one individual to be paid over to another,we cannot doubt (though the question was probably never raised), that when a wife dies leaving a husband surviving her, the common law gives him, absolutely and at once, what ever bank-bills she leaves, as well as her lawful money," strictly so called. Yet, from want of a clear conception of the terms to be used in personal property, it has been usual to say that the wife's choses in possession go absolutely to the husband, while her choses in action do not, unless he reduced them into possession during her lifetime. See Schoul. Hus. & Wife, §§ 150, 151. That, in our opinion, mere current bills are incorporeal, or choses in action, while "lawful money" is a chose in possession, we have already sufficiently intimated in this chapter. That our peculiar species which require legal distinction. treatment of the subject may be logical and progressive, we shall first speak of that simplest species of an incorporeal chattel which is known as a debt. § 354. Simple Chattel Incorporeal; Debt defined, etc. - A debt, as one readily gathers from its Latin derivation, is something owed. The person to whom it is owed is the creditor: the person owing it is the debtor. "The legal acceptation of debt is," says Blackstone, "a sum of money due by certain and express agreement: as, by a bond for a determinate sum; a bill or note; a special bargain; or a rent reserved on a lease; where the quantity is fixed and specific and does not depend upon any subsequent valuation to settle it." But perhaps the words "certain and express " here used are rather too strong; for the creation of a debt may be proved by any circumstances which raise an agreement by implication; and in a less technical sense the word debt may sometimes be popularly used to denote any claim for money, or any kind of a just demand. But we most properly use the word debt as denoting in law that money is owed; also that the money is owed by virtue of some agreement or contract between the parties; also that a fixed and specific amount is due, and not something to be ascertained by valuation hereafter. To a debtor corresponds the creditor; and the reciprocal rights of debtor and creditor are defined by positive rules of law which equity cannot vary.3 § 355. "Obligation" distinguished from Debt; A Word of Larger Scope. As a word of larger scope than debt we sometimes use the term "obligation." Now, obligations may be legal and legally binding, or moral and only morally binding. A legal obligation should always be a moral one likewise; but all moral obligations are not necessarily legal. An obligation is that which binds one to do something; and a legal obligation binds a person to do something agreeably to the laws of the land. An obligation, in other words, is a duty; and corresponding to duties and obligations are rights. But a person may be under a variety of obligations; he may be obliged to do a piece of work, or to follow the instructions of a superior, or to pay money; and the person to whom he is thus bound has a corresponding right to exact the fulfilment of the obligation. But the only right corresponding to a debt is that of receiving satisfaction in money or its equivalent; and the only thing owed is money or what may be accepted as its equivalent. A debt, then, corresponds most nearly to a money right; though there may be "money rights," so called, growing out of demands for injuries as well as demands under a contract, corresponding, indeed, to any duty or obligation of one person to pay money over to another.1 But the word "obligation" in English law has sometimes quite a technical meaning, which we may as well notice before passing further. It was from an early period used to denote a bond containing a penalty, with a condition annexed for the payment of money, performance of covenants, or the like, therein differing from a bill, which is generally without a penalty or condition, though it may be obligatory; namely, to denote a deed whereby a man binds himself under a penalty to do a thing.2 The obligor is the person who makes the bond or engages to perform the obligation; and the person in whose favor the obligation is contracted is the obligee. Any obligation may be personal, in the sense that the obligor binds himself to perform an act without directly binding his property for its performance; or, again, personal, in the sense that he binds himself only, without including his heirs 1 Bouv. Dict. "Obligation; " Inst. 3, 14; 2 Prothier Obl., Evans's ed. 56; Cro. Jac. 251, § 373. 2 Ib.; Co. Litt. 172; Com. Dig. "Obligation." |