concurring in the reversal, though dissenting from the opinion of the majority of the court on one point, delivered the following opinion :
Although concurring in the reversal, I dissent on an important point for the following reasons:
Had the charter provided that, in case either party should take an appeal, and that the bridge company, in the meantime, should desire the possession of the land, that it should be entitled thereto by depositing the amount assessed by the jury with the court, or the clerk, or the sheriff, or any other named depositary, to the credit of the proprietor, it would have required precisely the same kind of currency, and the same precise amount, as it does require by the provisions of the charter designating any specie-paying bank of Covington in which the deposit may be made to the credit of the proprietor, in order to enable the bridge company to take immediate possession. Any specie-paying bank of Covington was designated by the Legislature because such were deemed safe depositaries, and not with the view, in any manner, of changing the character of the funds to be deposited; hence, when all the banks suspended specie payments, they lost the essential legal requisite *378of safety, and immediate responsibility, which the law had designated, and were no longer lawful depositaries for the purposes named. But this was.neither the fault nor misfortune of the proprietors. Had there been such a bank, however, when this deposit was made, it could not have been compelled to take, nor should it have taken, any currency but such as by law was a legal tender; and had it done so, it would have immediately become responsible for the amount in legal currency. As the deposit was made by the bridge company in a non-specie paying bank, which was not authorized by the charter to receive it, the deposit was not legal, and could in nowise affect the proprietor, nor confer upon the bridge company the right to take possession of the land; hence it is not necessary to decide whether United States Treasury notes, declared by an act of Congress to be legal tender, were sufficient, especially as this involves the constitutionality of said act, which question is now before this court for adjudication in other cases.
Had the charter required the jury to assess the money value in damages, instead of “ the cash value” it would have been of the same precise legal import; for these are convertible terms. The law universally requires damages to be assessed in dollars, and juries are ¿required to ascertain how many dollars are to be paid by one party to another as damages.
The whole import of these terms, “ the cash value,” was to exclude from the jury the right to consider value based upon deferred payments, or payments on time. The bridge company must pay in cash; it had not even the privilege of replevy for three months by giving bond and surety, to have the force of a judgment; it was therefore essentially just that the bridge company should have the benefit of a cash valuation — the quality, kind, or value of the currency to be paid was not intended to be included nor designated in these terms. Nothing more was intended than to limit the jury to the sole consideration of value in cash. When the jury had ascertained the “cash value in damages,” and said how many dollars it amounted to, they had discharged their entire duty — exhausted all their legal power, and become functus oficio. They could *379not assess the value of the dollars, nor say in what Icind of dollars the damages should be paid. The law adjudges what are dollars, and from its imperious judgment there is no appeal.
The whole proceeding to ascertain the “ cash value” of the damages is judicial; but who is to ascertain the value of the dollars assessed by the jury ? By what proceeding is this value to be ascertained? And when ascertained, is it to be of record or by parol, and how is it to be made known ? Who is to appoint the umpire, tribunal, or whatever it may be called, which is to ascertain this value ? Is any specie-paying bank of Covington in which the money maybe deposited invested with this power? And if so, is its judgment to be final? And if not final, how shall the injured party have redress, or have an appeal whereby to reverse an unjust determination, whether by the bank or other tribunal, umpire, or power? By what character of evidence, what market, and at what time, is this value to be fixed? And when in some manner, to the charter and laws unknown, this value shall be ascertained, to whom is it to be made known ? Or if it be replied that it is not the value of the dollars assessed by the jury which is to be ascertained, but the value of th& dollars by which those dollars may be discharged, the same questions are just as pertinent.
These questions are suggestive of the inconsi$tenc3r of allowing the damages ascertained to be paid in anything but currency which by law is a legal tender, and in any other amount than that fixed by the jury.
If the rule be adhered to that the damages are to be discharged only by paying the exact number of dollars fixed by the jury, in such money, or currency, as by law is declared to be a legal tender, the whole process is simple, harmonious, and reasonable. Any other construction renders the system complex, incongruous, and inconsistent. If the party to pay can discharge the damages so ascertained by anything but the lawful money of-the country, or that money which the law designates as legal tender, why may he not discharge it in any marketable commodity at its market value? The ascertainment of the market value of cotton, tobacco, wheat, or pork, is frequently not as difficult or embarrassing as the ascertain-*380meat of tbe market value of depreciated paper currency, and believed to be never more so.
If the damages can be discharged in one kind of depreciated paper currency, not a legal tender, it can be discharged in any kind of paper currency. If the damages are tendered in a currency which, by law, is a legal tender, the number of dollars assessed by the jury is all that should be tendered, or can be rightfully demanded.
Why should not the question of the value of the currency be as much a judicial question, as the question of the value of the damages? And if so, the absurdity is presented, of first ascertaining by judicial proceeding the value of the damages, and then, By another judicial proceeding, of ascertaining the value, in some currency, of the amount first assessed.
In the case of Johnson's adm'r vs. Vickers, at the present term (1 Duvall's Rep.), this court reversed the judgment below which was rendered Vickers for four hundred and twenty-two dollars “ in gold or silver.” On an obligation executed by Johnson May 13, 1858, promising to pay that amount “ in gold or silver,” this court held that at that time only gold and silver was a legal tender, and that such obligation legally meant nothing more than a payment of that many dollars, and that such had been^he unbroken current of judicial determination of this court, and that such should have been the judgment; and goes on to say that “the tender act of Congress, if constitutional, cannot retro-act on the contract so as to change its legal construction and effect. It is true, that, although ¡without that enactment Vickers could not have been required to take any other medium than gold or silver in satisfaction of a judgment for dollars simply, yet if that act be law, he might be compelled to take ‘ greenbacks ’ at par. But this is ulterior and contingent, and does not affect the construction of his contract, nor change the character of the only proper judgment on it for ‘ dollars.’ ”
It is hard to perceive why a contract provided by law, in the exercise of the undoubted right of eminent domain, whereby the property of one is to be transferred to another on the ascertainment of its value by a jury, and the payment of the amount, *381shall be better guarded, made more sacred, or the subject of greater solicitude, than the express contracts between private individuals.
This decision is conclusive that the verdict of the jury simply for “ dollars ” was correct, and that, as this act of incorporation was enacted before treasury notes were attempted to be made a legal tender, the only legal judicial significance to be attached to the language is, that the damages should be paid in “ dollars,” and that the question of what kind of money the proprietor could be required to accept was an ulterior question, and depended on what might judicially be determined to be dollars. Dollars in constitutional, legal, and judicial contemplation, is that kind of money alone which by law one party may pay and the other is bound to receive. No such thing as adjudging one kind of dollars to one creditor and another kind of dollars to another creditor, compelling one man to take depreciated dollars, and compelling another to pay dollars of greater value, can constitutionally or legally exist.
Whether courts may give the value of certain kinds of coin or bullion in their judgments, by increasing the number of doE lars, as they would give judgment for the value of so many bushels of wheat, or pounds of tobacco or cotton, payable at a future day, need not be decided; but whatever amount of dollars the court may adjudge can be discharged alone by paying that exact amount in such' currency as may by law be a legal tender.
For these reasons, and to this extent, 1 dissent from the opinion of the majority of the court.