Opinion
[Syllabus Material] [Syllabus Material] [Syllabus Material] [Syllabus Material] [Syllabus Material] 24 Cal. 656 at 663.
Original Opinion of October 1864, Reported at: 24 Cal. 656.
JUDGES: Rhodes, J., on petition for rehearing. Mr. Justice Sawyer expressed no opinion.
OPINION
RHODES, Judge
By the Court, Rhodes, J., on petition for rehearing:
The appellant in his petition for rehearing again insists that the payment by the judgment debtor of the amount necessary to effect a redemption of his land, sold by the Sheriff under a judgment of foreclosure, is not the payment of a debt within the meaning of the term debt as employed in the Act of Congress providing for the issue of treasury notes. This point was passed upon by us in the opinion already rendered in the case, after very careful consideration, and the result arrived at was adverse to the very forcible views of the learned counsel, but we think the decision of the point is unnecessary, and that the case can be properly determined without regard to the solution of that question.
Only two questions are necessarily involved in the case, and they relate to the capacity in which the Sheriff acts in receiving the redemption-money and the character of treasury notes as lawful money.
We are satisfied that the Sheriff is by law constituted the agent of the purchaser in receiving the redemption-money, and that as such agent, in cases where neither the law nor the judgment of the Court directs him to receive a particular kind of money only, he may properly receive for the purposes of redemption any lawful money, in the absence of instructions from the purchasers, when he has the right to give such instructions, restricting him to a certain kind of money.
The remaining question is, whether treasury notes are " lawful money," notwithstanding they are declared by the Act of Congress a legal tender for certain purposes, but not for all purposes for which money may be employed. On this question we see no sufficient reason for changing the opinion already announced by us, that treasury notes are lawful money.
As we have already remarked, silver money is not a legal tender in payment of sums exceeding five dollars, but can it be questioned that it is lawful money? If a debtor, to satisfy his obligation for the payment of a sum of money exceeding five dollars--the kind not being specified in the contract--should pay the creditor the amount in silver coins, and nothing should be said by the debtor or creditor at the time of its payment as to its being paid or received as or in lieu of money that would be a legal tender in the payment of the debt; and if thereafter an action should be brought on the contract, could not the debtor rely upon payment for his defense, or would he be obliged to answer an accord and satisfaction, or a set-off? If the silver coins are not lawful money, they could not be employed in the payment of a debt calling for money, unless the creditor agreed to receive and did receive them as lawful money. Treasury notes, like silver coins, are not a legal tender for all purposes, but, like them, constitute lawful money.
It is proper to remark, though not in response to the arguments of the learned counsel for the appellant, that the purchase at the Sheriff's sale, in this case, was made with treasury notes, and that the provisions of the " Specific Contract Act" are not in any manner involved in this case, nor the case out of which the present action arose.
We do not desire a reargument of the questions necessarily involved in this case, and on which the decision hinges, and must therefore deny the petition.
Mr. Justice Sawyer expressed no opinion.