When this case was before the general term, on a former occasion, the Justice who delivered the opinion of the court observed that “ it would hardly be consistent with a fair interpretation of this contract that the defendants might receive bills on banks, on deposit, at the *253time worth quite or nearly par, and after using the same, be allowed to repay the amount in the same kind of money, even if it had become, since the deposit, worthless.”
At the trial, evidence of a custom at Chicago was received tending to show that when deposits were made in the manner specified in this contract, repayment should be made in notes of the same character ; that is, in notes of Illinois banks, but current for the ordinary transactions of business, in the state of Illinois, at their nominal or par value. It was also proved that any bills of Illinois banks not depreciated more than five per cent would, on the 11th of June, 1862, when the certificate was presented for payment, at the banking house of the defendants, have been received in payment as ordinary currency in the state, in the ordinary transactions of business, at par.
On the first perusal of the certificate in question I was inclined to the opinion that the defendants were liable to pay in specie ; the description of the paper specified in the certificate appearing to me to relate only to the bills received, and not to the manner in which repayment should be made. Certainly it would be a hard construction of the contract to infer from it that the parties intended, although the bills were current at the time they were received, that the defendants, after using them, should be allowed to repay the amount in the same kind of money after it had become depreciated. This would be a fair construction, if the deposit was a special one merely for safe keeping, when the same identical bills should be returned ; but where, as in the usual dealings between banks and their .depositors, the former use the money of the latter, nothing would be more unjust than that the banks, after applying the money when it was current, to their own business purposes, should be allowed, after it became uncurrent and depreciated, to apply bills of the same kind which they may have on hand, or which they may pick up among the brokers, to the repayment of the amount deposited.
*254[New York General Term, May 4, 1863.If the-plaintiffs are not entitled to specie, they were'at least dinary transactions of business at par. entitled to payment in Illinois currency receivable in the or-
The judgment should be affirmed, with costs.
Sutherland, Clerke and Mullin, Justiees.]