#### B. JOHNSON ET AL. v. THOMAS ASH.

APPEAL BY PLAINTIFFS FROM THE COURT OF COMMON PLEAS NO. 2 PHILADELPHIA COUNTY.

Argued April 8, 1891

Decided April 27, 1891.

Where a ground-rent was reserved by a deed dated June 11, 1808, payable in Spanish Milled Dollars, a tender of the amount in such dollars in 1890 was valid. The owner was not then entitled to demand lawful silver coin of the United States.

Before Paxson, C. J., Green, Glare, McCollum: and Mitchell, JJ.

No. 292 January Term 1891, Sup. Ct.; court below, No. 835 September Term 1890, C. P. No. 2.

On November 18, 1890, a case stated was filed wherein Barclay Johnson and Sallie P., his wife, in right of said wife, and Elizabeth B. Pleasants, were plaintiffs, and Thomas Ash was defendant, setting forth:

A deed from Israel Pleasants and wife to Thomas Ash, dated June 11, 1808, for premises at the northeast corner of Bainbridge and Charles streets, reserving to the grantors, their heirs and assigns, forever, “the rent or sum of fifty-four Spanish Milled Silver Dollars and two thirds of a dollar, in four even quarterly payments of thirteen dollars and two thirds of a dollar each, on the twelfth day of the months of March, June, September and December, in each and every year forever, hereafter.” Except in this reservation, the word “dollars” was used without any designation.

On March 12, June 12, and September 12, 1890, quarterly payments of said ground-rent became due, and as each quarterly payment matured, the defendant, holding under Thomas Ash the covenantor, tendered to the plaintiffs thirteen Spanish Milled Dollars and sixty-seven cents. The owners refused acceptance, alleging that they were entitled to payment in lawful silver money of the United States. The question submitted was the validity of said tenders.

The case stated set out further, in substance, as follows:

*46In 1792, congress adopted the Spanish milled silver dollar as the standard of value of the United States dollar authorized to be coined by that act: 1 U. S. St. at L., 248.

In 1806, congress made Spanish milled silver dollars, of 17 pwts. 7 grs. in weight, a legal tender for all debts, at the rate of one hundred cents of United States currency: 2 U. S. St. at L., 374.

In 1857, congress demonetized Spanish milled silver dollars.

In 1868, Spain adopted the currency of the Latin Union in which the dollar had no place, made the new coinage obligatory, and provided for the withdrawal of the old currency.

—After argument, judgment was entered in favor of the defendant in the case stated, without opinion filed. Thereupon, the plaintiffs took this appeal, specifying that the court erred in entering judgment for the defendant, and in not entering judgment for the plaintiffs.

*Mr. Henry Pleasants*(with him *Mr. Samuel Hinds*Thomas), for the appellants.

Counsel cited: Shollenberger v. Brinton, 52 Pa. 34; Mervine v. Sailor, 52 Pa. 18; Butler v. Horwitz, 7 Wall. 361; Dutton v. Pailaret, 52 Pa. 112; United States v. Gardner, 10 Pet. 618; Lee v. Knox, 12 Wall. 467.

*Mr. Joseph, M.*Pile, for the appellee.

Counsel cited: Mather v. Kinike, 51 Pa. 426 ; Christ Church Hospital v. Fuechsel, 54 Pa. 71; Perot v. Eichholz, 25 W. N. 527; Dutton v. Pailaret, 52 Pa. 109; Butler v. Horwitz, 7 Wall. 361.

Pee Curiam :

The court below properly held that the plaintiffs were obliged to receive the kind of money the contract called for. It is to be presumed that when the ground-rent was created, the reservation of the rent in Spanish Milled Silver Dollars was for the benefit of the owner of the rent. It was certainly not for the benefit of the ground-tenant. The plaintiffs, having enjoyed what benefit there was under the contract, may well take the disadvantages thereof, if there are any.

Judgment affirmed.

On May 18, 1891, a motion for a re-argument was refused.