IN error to the Supreme Court of the State of Iowa.

In June 1861, Benjamin Wilson, one of the plaintiffs in the court below, gave to the defendant his promissory note for nine hundred dollars, due one year after date with ten per cent. interest, payable in specie; and at the same time, to secure its payment, executed, in connection with his wife, and delivered to the defendant a mortgage upon certain real property in the state of Iowa. This mortgage was duly recorded in the office of the recorder of the county where the land was situated.

In February, 1863, Wilson offered to pay the defendant the amount due on the note, principal and interest, and for that purpose tendered to him such amount in United States notes, declared by the Act of Congress of February 25th 1862, 12 Statutes at Large 345, to be a legal tender for all debts, public and private, with certain exceptions, but the defendant refused to receive them, claiming that the note was payable in gold or silver coin of the United States.

In July 1865, the plaintiffs, who were then residents of Iowa, presented to one of the district courts of that state their petition, setting forth the alleged tender, and praying that the defendant might be required, by its decree, to release and discharge the mortgage upon the proper book of record, as required by law upon the payment of a mortgage-debt, averring that they had kept the money tendered, ready to pay the defendant, and that they brought the same into court for that purpose.

The defendant demurred to the petition on several grounds, but the only one presented for consideration here, was that the tender was not a good and sufficient tender, because not made in gold and silver coin, in which alone the note was payable.

The court overruled the demurrer, and in September 1866, gave its decree for the plaintiffs, that the mortgage be cancelled, and that the defendant enter satisfaction of it upon the record, holding that the tender was legal and sufficient.

On appeal to the Supreme Court of the state this decree was, in October 1867, affirmed, and the defendant took this writ of

error.

The opinion of the court was delivered by

FIELD, J.-The principal question presented for our consideration is, whether a promissory note of an individual, payable by its

terms in specie, can be satisfied, against the will of the holder, by the tender of notes of the United States declared by the Act of Congress of February 25th 1862 to be a legal tender in payment

of debts.

There is, however, a preliminary question of jurisdiction raised, which must be first disposed of. The state court, in holding the tender legal and sufficient, sustained the validity and constitutionality of the Act of Congress declaring the notes a legal tender. Its decision was, therefore, in favor of, and not against, the right claimed by the plaintiffs under the Act of Congress, and hence it is contended that the appellate jurisdiction of this court does not arise under the 25th section of the Judiciary Act of 1789. Some support is given to this view by the decision of this court in Roosevelt v. Meyer, 1 Wall. 512, where it was held that, as the validity of the Legal Tender Act was drawn in question in that case, and the decision of the state court was in favor of it, and of the right set up by the defendant, this court had no jurisdiction to review the judgment, and a dismissal of the case was accordingly ordered. The court in that case confined its attention to the first clause of the 25th section of the Judiciary Act, and in its decision, appears to have overlooked the third clause. That section provides for the review of the final judgments and decrees of the highest court of a state in which decisions could be had, in three classes of

cases:

First. Where is drawn in question the validity of a treaty or statute of, or an authority exercised under, the United States, and the decision is against the validity;

Second. Where is drawn in question the validity of a statute of, or an authority exercised under, any state, on the ground of its being repugnant to the Constitution, treaties, or laws of the United States, and the decision is in favor of its validity; and,

Third. Where is drawn in question the construction of any clause of the Constitution, or of a treaty or statute of, or commission held under, the United States, and the decision is against the title, right, privilege, or exemption specially set up or claimed by either party under such clause of the Constitution, treaty, statute, or commission.

Under this last clause the appellate jurisdiction of this court in the case of Rooser elt v. Meyer might have been sustained. The plaintiff in error in that case claimed the right to have the bond

of the defendant paid in gold or silver coin under the Constitution, upon a proper construction of that clause, which authorizes Congress to coin money and regulate the value thereof and of foreign coin; and of those articles of the Amendments which protect a person from deprivation of his property without due process of law, and declare that the enumeration of certain rights in the Constitution shall not be construed as a denial or disparagement of others retained by the people, and reserve to the states or the people the powers not delegated to the United States or prohibited to the states.

The decision of the court below being against the right of the plaintiff in error claimed under the clauses of the Constitution, the construction of which was thus drawn in question, he was entitled to have the decision brought before this court for reexamination.

In the present case, as the defendant claimed a similar right upon a construction of the same and other clauses of the Constitution, and a like adverse decision of the court below was made, he is equally entitled to ask for a re-examination of the decision.

But the defendant also claimed a right to demand coin in payment of the note of the plaintiff by the Acts of Congress regulating the gold and silver coins of the United States, and making them a legal tender in payment of all sums according to their nominal or declared values, contending that the Act of 1862, making notes of the United States a legal tender for debts, did not apply to the contract in suit. He thus claimed in fact, although he did not state his position in this form, that, upon a proper construction of the several acts together, he was entitled to payment in coin. This right having been denied by an adverse decision, he was clearly in a condition to invoke the appellate jurisdiction of this court for the review of the decision.

Nor is the appellate jurisdiction of this court, in this case, affected by the change in the language of the third clause of the 25th section of the Judiciary Act of 1789, by the 2d section of the Amendatory Judiciary Act of February 5th 1867. By this clause in the latter act the judgment or decree of the highest court of a state can be reviewed "where any title, right, privilege, or immunity is claimed under the Constitution, or any treaty, or statute of, or commission held, or authority exercised under, the United States, and the decision is against the title, right, privilege, or immunity

specially set up or claimed by either party, under such Constitution, treaty, statute, commission, or authority." The section came incidentally before the court, at the last term, in Stewart v. Kahn, 11 Wall. 502, but it was not deemed necessary to determine whether it had superseded the 25th section of the Judiciary Act of 1789. As there observed, it is to a great extent a transcript of that section; and several of the alterations of phraseology are not material. The principal addition is found in the second clause, and the principal omission is at the close of the section. But in this case, as in that, there is no occasion to express any opinion as to the effect of the new section upon the original. Under the new section, as under the old, if that be superseded, the plaintiff in error can seek a review of the decision made against the right claimed by him.

We proceed, then, to consider the merits of the case. The note of the plaintiff is made payable, as already stated, in specie. The use of these terms, in specie, does not assimilate the note to an instrument in which the amount stated is payable in chattels; as, for example, to a contract to pay a specified sum in lumber, or in fruit or grain. Such contracts are generally made because it is more convenient for the maker to furnish the articles designated than to pay the money. He has his option of doing either at the maturity of the contract, but if he is then unable to furnish the articles, or neglects to do so, the number of dollars specified is the measure of recovery. But here the terms, in specie, are merely descriptive of the kind of dollars in which the note is payable, there being different kinds in circulation, recognised by law. They mean that the designated number of dollars in the note shall be paid in so many gold or silver dollars of the coinage of the United States. They have acquired this meaning by general usage among traders, merchants, and bankers, and are the opposite of the terms in currency, which are used when it is desired to make a note payable in paper money. These latter terms, in currency, mean that the designated number of dollars is payable in an equal number of notes which are current in the community as dollars: Taup v. Drew, 10 How. 218.

This being the meaning of the terms in specie, the case is brought directly within the decision of Bronson v. Rhodes, 7 Wall. 229, where it was held that express contracts, payable in gold or silver dollars, cculd only be satisfied by the payment of coined

dollars, and could not be discharged by notes of the United States declared to be a legal tender in payment of debts.

The several Coinage Acts of Congress make the gold and silver coins of the United States a legal tender in all payments, according to their nominal or declared values. The provisions of the Act of January 18th 1837, and of March 3d 1849, in this respect, were in force when the Act of February 25th 1862, was passed, and still remain in force. As the Act of 1862 declares that the notes of the United States shall also be lawful money and a legal tender in payment of debts, and this act has been sustained by the recent decision of this court as valid and constitutional, we have, according to that decision, two kinds of money essentially different in their nature, but equally lawful. It follows, from that decision, that the contracts payable in either, or for the possession of either, must be equally lawful, and if lawful must be equally capable of enforcement. The Act of 1862 itself distinguishes between the two kinds of dollars in providing for the payment in coin of duties on imports and the interest on the bonds and notes of the government. It is obvious that the requirement of coin for duties could not be complied with by the importer, nor could his necessities for the purchase of goods in a foreign market be answered, if his contracts for coin could not be specifically enforced, but could be satisfied by an offer to pay its nominal equivalent in note dollars.

The contemporaneous and subsequent legislation of Congress has distinguished between the two kinds of dollars. The Act of March 17th 1862 (12 Stats. at Large 370), passed within one month after the passage of the first Legal Tender Act, authorized the secretary of the treasury to purchase coin with bonds or United States notes, at such rates and upon such terms as he might deem most advantageous to the public interest, thus recognising that the notes and the coin were not exchangeable in the market according to their legal or nominal values.

The Act of March 3d 1863, 12 Stats. at Large 719, § 4, amending the Internal Revenue Act, required contracts for the purchase or sale of gold or silver coin to be in writing, or printed, and signed by the parties, their agents or attorneys, and stamped; thus impliedly recognising the validity of previous contracts of that character without this formality. The same act also contained various provisions respecting contracts for the loan of cur