The judgment of the court was pronounced by
Eüsíis, C. J.*This is ah action brought on three promissory motes drawn by the defendants in favor of the plaintiff or ol-der. They are the first of a series of twelve notes which, it is alleged, were given to the plaintiff in renewal of certain notes on which Stark, the only defendant before Us, and another, Were indebted to the Agricultural and to the Planters’ banks in Mississippi. The banks assigned these notes to the plaintiff for the benefit Of the assignees of the late United States Bank of Pennsylvania, to whom they were indebted. It is alleged that the transfer of those notes to the plaintiff was in violation of a statute of the State of Mississippi, and was consequently null and void, and gave no right of action to the plaintiff; and that the notes noW sued on, being given in renewal of the original notes held by the banks, were not only without any good or sufficient consideration, but that the consideration was unlawful and against the public policy, and in direct Violation of the statute, of Mississippi, where the whole transaction originated and was completed, and under whose laws tbe lights of the parties litigant must be determined. There was judgment for the plaintiff, and Stark, one of the defendants, has appealed. The case has been argued at bar on the grounds thus presented, and we proceed to consider them without any reference to any question Which might arise as to the facts of the case, as authorising such a defence in this action.
The question which we are called upon to decide is, whether, with the consent of the debtor, the notes for which the notes sued on were given could be transferred by the bank which held them to the plaintiff, so as to create a legal obligation on the part of the debtor to discharge them, when thus transferred, in the hands of the assignee. The section of the act of the legislature of Mississippi which, it is said, destroys absolutely any right of transfer on the part of the bank, is in these words :
“ And he itfurther enacted, Sfc., That it shall not be lawful for any bank in *74this State to transfer by endorsement or otherwise any note, biil receivable, or other evidence of debt; and, if it shall appearin evidence upon the trial of any action upon any such note, bilk receivable, or other evidence of debt, that the same was so transferred, the same shall abate upon the plea of the defendant.”
In the case of Haslip v. Leggett, 6 Smedes and Marshall’s Rep. 327, it was held by the High Court of Errors and Appeals of Mississippi that, in an action against the maker of- a note payable to a hank* by the endorsee of the bank, the defence which this statute affords to the debtor could not be made under the plea of the general issue, butonly be reached by a plea in abatement. The case of the Planters' Bank v. Sharp is referred to in the opinion of the court, and in that case Chief Justice Sharkey, in reference to this section of the statute, makes use of this language: “The language of the statute is very broad, it is true, but still we must look at its spirit and meaning. If the object of the legislature be apparent, it should be so construed as to accomplish that object, and there it should end.” “ I regard this provision not as a punishment on the bank, by compelling a forfeiture of its right of action, but as intended solely and exclusively for the benefit of bank debtors. Bank paper was then very much depreciated and the country was full of this depreciated currenoy, and it-was designed to-secure to debtors the right to pay the banks in their own notes. By allowing, them to transfer tlieir notes, debtors would have been compelled to pay the endorsees in the constitutional currency.” 4 Ibid. 17. And in the case of the Commercial Bank v. Thompson, 7 Ibid. 448, the Chief Justice, in delivering the opinion of the court, says : “ The act prohibiting the assignment of notes was intended for tlie benefit of the makers of the notes, and they may waive their right to insist upon it, if they will.”
We think that the exposition of the policy of the State, and the construction thus given to the statute is not impugned by the opinion of the court delivered by the same judge in the case of Robson and Allen v. The Benton and Manchester Railroad and Banking Co. decided at the same term* Nov. 1846, 7 Ibid. 725.
The decisions appear to- us to be conclusive on this point. The policy of the State is declared by its courts of- the last resort, to hav-e been the security of the right of debtors to pay their debts to the banks in their several notes, and to prevent a violation of that right,- and the statute vests in the debtor the option of waiving or insisting on the privilege which- it conferred, which was created for his benefit in furtherance of the public policy. The transfer of these notes does not place the party claiming under it,, in the position- of one to- whom courts can give no assistance in- enforcing his contract, as in cases of a plaintiff seeking to enforce an immoral- or unlawful- contract. The- consideration of 1 the notes sued ou we, therefore, hold to be lawful and- adequate. The notes sued on are in the'form of promissory notes, with a reservation of a right to discharge them in* the notes of the Bank of the United States. The judgment is in conformity therewith* and, as we conceive, in accordance with the true intent and import of tne notes.
Judgment affirmed. *
Sudell, J., having been of counsel, did not sit on the trial of this caso.
Prentiss and Finney, prayed for a re-hearing in this case. The judgment of the court below is erroneous ill this : That it' is a judgment for so much money, with the privilege of discharging the same in the notes of the Bank of the United States. Defendant contends that his contract did not authorise such a judgment, and that tho only legal judgment which was warranted was a judgment for damages, which damages should havo been tho ascertained value of tho United States Bank notes at the time of *75the breach of the contract, to wit, the-time when the notes respectively fell due. Tho contracts sued on are not obligations for.the payment of money,-either absolutely or in the alternative. They are simple obligations for the delivery, at certain periods, of a certain amount of United States Bank-notes. Upon a breach of these.contracts, nothing but damages can be recovered, and the only legal criterion of damages is the value of the bank notes at the time of the.breach. The obligations do not fix the value of‘.the article to be delivered, and therefore it was incumbent on the plaintiff to prove their value at the trial, before he was entitled.to a judgment at all.
First. The contracts sued on are to be construed, as torfheir meaning, extent, force, and obligation, by the laws of (Mississippi, in which State they were executed and made payable.
Second. Construed by the laws of Mississippi, the contracts sued on are not obligations for the payment of money, either absolutely or in the alternative, but simple obligations for the payment or delivery of a certain enumerated amount of United States Bank notes ; they are not alternative obligations at all. This point is well settled by the following authorities: The first case in whieh.the question is raised, is Bonel v. Covington, 7 Howard, 322, which was a suit on a promissory note “ for .$573, payable in the current notes of either of the banks of Natchez or.of the Union Bank.” Upon .this point the court says, p.327: “ In determining that the plaintiff is entitled to the notes.of the banks mentioned, that were current on the day the note sued on (became due, .we do not decide that he was entitled to claim the amount in specie. If -there was any difference between the current notes of those banks, if there were any such, and ¡specie, it may be estimated by the jury, and the defendants allowed the benefit of such difference. Then-verdict must be for the value of the current notes in specie at the time payment should have been made.” The next ease in which the matter is discussed is in Saunders v. Richardson, 2 Smedes and Marshall, 90. In that case.the defendant had given his note for so much money, absolutely. There was, however, a separate agreement contained in a deed between the parties,that this .note might be paid in bank notes of tho different Mississippi banks. It was urged in argument that this case was similar to that of a note payable upon its face in bank notes, and therefore it -was argued that .the .plaintiff could only recover the value of the bank paper at the time of the maturity of the note. Thq court, however, held that the cases were not similar; that the one before them was a contract to pay money, subjeGt, however, to a defeasance, and that if the defendant did not take advantage of the defeasance by tendering.the bank paper at the maturity,of his note, then his contract to pay money-became absolute. In -explaining-the difference between the case before the court, and a case of a note .payable on its faoe in bank notes, Chief Justice Sharkey says, p. 105 : “ Taking for the present the law toibe as stated, we shall endeavor to draw the distinction,between this contract and those .which have given rise to the decisions cited. In cases of the description mentioned, -the essence of the agreement was the thing to be paid. .By common consent, bank nctes have been substituted as currency. They are necessarily liable to great fluctuation in value, and a note payable in such currency bears a striking analogy,to an agreement .to pay any other specific article. The extent of the obligation is the thing agreed to be .paid; such contracts cannot be interpreted so as,to enlarge the obligation. A failure to.perform entitles the plaintiff to recover the value only, as equivalent to what he would have received on voluntary payment. The .extent of the liability or undertaking is limited by the terms of the obligation. But this.is not a note for so much payable in a.certain description of currency,” &e.
This view of the Mississippi court is conclusive as to the true construction of a note payable on its face in bank paper. These are notes “ for so much .payable in a certain description of currency.” “ The extent of -the obligation is the thing agreed to be paid.” The obligee can only call for that thing; “ a failure to perform entitles the plaintiff to recover the value only.” Now, what is the thing agreed here to be paid? They are “notes for so much payable in a certain description of currency, viz: United States Banknotes! What does the failure .to perform entitle the plaintiff to recover ? “The value only,” says Chief Justice Sharkey. But the court below, in the present case says, if the defendant will not perform his obligation to pay United States Bank notes, the plaintiff.shall be entitled to recover, not the valuó only, but the same amount, in good money. What right had the court ¡below to attach to the breach of the contract a greater penalty than the law attaches to it ? But we will cite an additional case to show that this question is no longer a mattar-of argument in Mississippi. In the case of Gordon v. Parker, 2 Smedes and Marshall, 485, suit was instituted on the following note:
“ $5,000. Due George ,S. Smith or bearer, five thousand dollars, payable in Brandon money. Jackson, January 26, 1839. N. C. Gordon.”
This obligation is in all respects similar to those under consideration. There is no difference whatever in tho -construction or force of the two contracts. This court then would (according to the opinion implied in its affirmance of the judgment below) construe the contract above eited as an alternative obligation, and say that a judgment for ,$5,000 in constitutional eurroncy, with the .privilege of discharging it by the payment of *76$5,000 in Brandon money, would be a valid judgment, and in accordance wiili the terms of the contract. But such is not the construction put upon it by the laws of Mississippi. Aftor a very elaborate argument at bar, the court construe the obligation thus, p. 495, of the volume cited: “The declaration contained an averment that the term Brandon money meant the notes of the Mississippi and Alabama Railroad Company, at Brandon, Mississippi. The defendant below requested the court to charge the jury that the measure of damagos in the case was, the specie value of the Brandon Bank paper at the maturity of the due bill, with interest, &e. The contract was to pay in a certain species of bank notes, and their value at the time of the date of the due bill should have been ascertained by the assessment of the jury, with interest. This was so decided by this court in tho case of Bond v. Covington.” Now the Supreme Court of Mississippi say. “ the contract was to pay in a certain speeies of bank notes ; in other words, that it was a simple and single obligation to pay a certain thing, at a certain time, and that tho only penalty of non-payment is the value of the thing at that time. This court says that a similar obligation is an alternative one, and that tho penalty for not paying the United States Bank notes is, not their real specie value, but their full nominal amount in good money. Even should this court believe its'own construction correct, yet it is respectfully urged that the law of Mississippi, not that of Louisiana, must govern the interpretation of this contract.
According to the present judgment it is truo the defendant has still the privilege of paying in United States Bank notes, but what we complain of is that the judgment inflicts upon him, in ease of non-payment, the penalty of the full nominal amount in good money. Now we have attempted to show that, by law, the only penalty of non-payment of the bank notes, is their value in specie at the time they should have been paid according to the terms of the contract. But there is another mode of testing the correctness of this judgment; if it be a valid judgment and in accordance with tho true meaning of the contract, then it is equally binding upon the plaintiff as the defendant. The facts of this case, upon which we resist the judgment, are, that United States Bank notes at tho maturity of the obligations sued on were worth only forty or fifty cents in the dollar. This is the true criterion of damages suffered by non-payment. At present these notes have appreciated to eighty or eighty-five cents in the dollar. But suppose, on the other hand, the notes had depreciated and were worth now only five cents in the dollar, would the plaintiff be bound to take them, when at the maturity of the obligation they were worth fifty cents in the dollar? It seems clear he would not. He would have been entitled, in damages, to the value at that time, and could not be compelled to take them in present satisfaction. This has been directly decided in Mississippi in the case of Lanier v. Trigg, 6 Smedes and Marshall, 64X. The note sued on in that case had belonged to the Hernando Bank, and under the law of Mississippi was payable, even in the hands of an assignee, in the notes ofthat bank. The defendant pleaded a tender of Hernando Bank bills, made long after the maturity of the notes, but the court decided that the tender was not good, and gave the following reasons, p. 645: “ The plaintiffs were entitled to the Hernando Bank bills, taking the plea to be true, on the dayjhe obligation became payable. The same nominal amount, six months afterwards, in such bills, might be of much less value. In an action of covenant of this kind the measure of damages must be the yalue of the article at the time of the breach, not its -value six months afterwards. The rights of the parties became fixed on that day.” Blaintiff’s counsel has suggested in his brief that this judgment, though it would not be good in Mississippi, is still good in Louisiana under our practice. Wo admit that tho remedy is local, but this is not a question of remedy. It is a question as to the meaning and construction of a Mississippi contract; to solve this question we must appeal to Mississippi Jaw, lie-hearing refused.