The opinion of the court was delivered by

If an action of debt will lie upon a

contract to pay in bank notes, I should think the plaintiff entitled to recover. The article of agreement itself conveys the land. It certifies, that for the consideration therein expressed, the plaintiff “ hath granted, bargained, and sold, and doth absolutely grant, bargain, and sell,” &c.; and the agreement to give a good and sufficient title, afterwards, ought rather to be construed of a more formal deed containing further assurances, than of title, strictly speaking. The *275land liad already passed ; the defendant had actually entered upon it, in pursuance of the article; had become clothed with the possession of it, and made his payments, in part, for it. According to my view of the case, therefore, the plaintiff could never recover it back out of his hands; and if he cannot now recover the price, he must lose it altogether. Besides, even if it were otherwise; and the land did not pass by the article, yet the defendant, by his taking and holding the possession of it under the contract, and paying from time to time, has waived the time of making the deed, and has kept the contract open, and so has made the tender of the deed set forth in the case a good and lawful tender ; at least, as to all but the three cases, and, as to them, the court is, by the agreement, authorized to ascertain and deduct their value from the whole amount. Upon the whole of the case, therefore, and the agreement of the parties, taken together, under this view of it, and. upon the supposition above made, I should see no objection to rendering judgment for the plaintiff. But still I cannot bring myself to render such judgment, because I think an action of debt will not lie upon a contract to pay in bank notes.

Bank notes are not money. They are not always, and in all places, of the value of money. They were not so at the time of this contract; the two kinds specified were of different values, and both, counting them upon the face, much under the value of money, I mean money of the United States, which is the only lawful money we know of; but it is of no consequence whether they wore of less, or of equal, or of greater value, still they are not the thing itself; they are no standard of value. Suppose the contract had been to pay in the bank notes of Kentucky, which we are told are now depreciated one hundred per cent., should we now here render judgment for the whole amount in lawful money ? And can wo, sitting here, distinguish between the notes of one state and those of another, and say, these are at par, and those are not so ?

*276It is true, that, in common parlance, bank notes are called money; they pass from hand to hand like money, and without endorsement; they are, by common consent, a sort of common measure of value; they were so, of necessity, even when the banks had stopped payment, and when they were' five-and-twenty per cent, below the value of money; and they are so even at this day, in some of the western states, where they are one-half below it.

When Lord Mansfield speaks of them as money, he is speaking of their nature as a currency; as distinguished from common negotiable notes; as passing without endorsement; and of the rights and liabilities of those who receive and pass them. In these respects he represents them, and represents them truly, as of the nature of money. He says, too, that by a bequest of money in a will, bank notes will pass; and the reason is, becairse in common discourse, they are called money, and it is to be presumed the testator intended they should pass as such. But however by their common currency they may resemble money, and however by the common consent they may answer the purposes of money, yet they certainly are not so in reality, nor have they a certain fixed value when compared with it.

What Lord Mansfield says, therefore, must be taken with certain qualifications arising from the subject matter of which he was speaking, and not in absolute sense. Besides, even Lord Mansfield did not say, nor has any other judge ever said, so far as I know, that an action of debt would lie upon a contract to pay in bank notes.

The remedy of the plaintiff, therefore, I think, would be in an action of covenant, in which he would recover his real damages, according to the then value of the bank notes, and according to the equity of the case.

I think, upon these principles, there must be judgment for the defendant.