Sec 984

Tender must be made in current coin, lawful in place of tender.7 The fact that a note is issued by a party does not make that note currency so far as concerns that party.8 Even to the bank issuing notes, such notes cannot at common law be paid as cash.1 - In England, special statutes have been passed making Bank of England notes legal tenders as long as they are redeemed in coin. By statute, also, gold coins are legal tenders without limit; silver coins to an amount not exceeding forty shillings; bronze coins to an amount not exceeding one shilling.2 In this country, the states are precluded by the constitution of the United States from passing legal tender acts. The act of congress making treasury notes of the United States government legal tenders has been held by a majority of the judges of the supreme court of the United States to be constitutional, as well as to debts incurred before the statute as to those incurred afterwards.3 The opinion of the court on this question,, however, is stripped of much of its weight by the fact that on the first hearing, while the court was unanimous in affirming the constitutionality of the statute as to debts incurred after its passage, there was a majority affirming the unconstitutionality of the statute so far as concerns debts incurred before its passage; and that it was not until after the appointment of two new judges that a majority of one affirming the constitutionality of the statute was secured. - It is conceded that, when a debt is made explicitly payable in gold or silver, it must be so paid.4

Tender must be in current coin, but this may be waived.

1 Douglas V. Patrick, 3 T. R. 683. In Leatherdale V. Sweepstone, 3 C. & P. 342, where the defendant offered to pay the plaintiff, and put his hand in his pocket to bring out the money, but before it was exhibited the plaintiff left the room, Lord Tenterden held there was no tender. See to same general effect Lockyer V. Jones, Peake, 180 n. In Finch V. Brook, 1 Bing. N. C. 253, Vaughan, J., quoted Sir James Mansfield as saying that "great importance is attached to the production of money, as the sight of it might tempt the creditor to yield.".

2 Alexander V. Brown, 1 C. & P. 288.

3 Benj. on Sales, 3d Am. ed. sec 714; Borden V. Borden, 5 Mass. 67; Gilmore V. Holt, 4 Pick. 258; Tasker V. Bart-lett, 5 Cush. 359; Hazard V. Loring,.

10 Cush. 267; Sands V. Lyon, 18 Conn. 18; Thorne V. Mosher, 5 C. E. Green, 257.

4 Bigelow, J., Hazard V. Loring, 10 Cush. 267, citing Barker V. Parken-horn, 2 Wash. C. C. 142; Blight V. Ashley, Peters C. C. 15.

5 Blight V. Ashley, 2 Pet. C. C. 24; Fuller V. Little, 7 N. H. 535; Breed V. Hurd, 6 Pick. 356; Bakeman V. Pooler, 15 Wend. 637.

6 Rogers V. Rutter, 11 Gray, 410.

7 Co. Lit. 207 b; Leake, 2d ed. 862; Moody V. Mahurin, 4 N. H. 296; Coxe V. Bank, 3 Halst. 172.

8 Bellows V. Smith, 9 N. H. 285; Cary V. Bancroft, 14 Pick. 315. See, however, Foley V. Mason, 6 Md. 37, and cases cited supra, sec 786.