Murrell brought his action before a Justice, to., recover forty dollars of Lowry, and obtained judgment accordingly. Lowry appealed to the Circuit Court, where a trial was had on the issues of non-assumpsit" and payment.
*282It appears by bill of exceptions, that Murrell had lent to Lowry one hundred dollars, in payment, of which sum, Lowry, in part satisfaction, paid two bills on one of the Banks in Georgia, of twenty dollars each; that several months after the institution of the suit before the magistrate, the Bank appéared to have stopped payment: the particular time did not appear. There was no proof that the notes had been presented at the Bank for payment, or of notice given to, Lowry, or of any offer to-return them to him. The notes were admitted to be genuine, and it appeared in evidence they were -worth about fifty cents in the dollar. There was no evidence of fraud or bad faith in the payment
Lowry requested the Court to instruct the jury, that if they found the facts as above stated, the plaintiff was. not entitled to recover : also, that unless'the, evidence shewed, a failure of the Bank before the issuance of the warrant, which was the Commencement of the suit, .the plaintiff could not recover. All which the Court re-fused; but charged, that the only question in the case was, did the defendant, owe plaintiff a debt, and did he pass the notes in question in payment of it; if so, were these notes of a Bank which had stopped payment before they were thus passed-; in the latter event, they must find for the plaintiff. The opinion of the, Court, in refusing the instructions as requested, and in giving the contrary charge, being excepted to, is here assigned as erroneous.
In the argument of counsel, (which has been ex parte plaintiff) the transaction has been treated as one in which a promissory note, or bill of exchange has been passed in the purchase of an article, or in discharge of a pre-existing debt. In cases of the former description, it has been ruled that, if a vendor of *283goods, receive from the purchaser the note of, a third person, (such note not being forged, and there being no fraud or misrepresentation on the part of the purchaser as to the note, or the solvency of the maker,) such note will be deemed to have been accepted by the vendor in payment and satisfaction, unless the contrary be expressly proved.-(Whitbeck vs. Van Ness.a-Breed vs. Cook & Caldwell :b) also, in a case of the latter description, (Wiseman, et al. vs. Lyman,c) it was held, that, where the defendant received in payment of a debt due him from the plaintiff, the promissory note of a third person, payable to said defendant, such note is at the risque of the defendant, unless there be fraud, or some agreement to the contrary.
There has, however, been some contrariety of d<> cisión on these points, especially in reference to preexisting debts; and in such cases a material enquiry is, whether the note of the third person was taken in absolute payment and discharge of the prior debt; or whether it was intended only as a guarantee of the debt, or conditional payment. If it be expressed or sufficiently implied, that such note was not passed in absolute payment, or if there be fraud or misrepresentation, resort may be had to the original consideration.
Payment of a debt, in a description of money,/ which if offered as a tender, and not objected to because of the kind, would be good, must, it would seem, be regarded as a valid payment. A tender must, in legal strictness, be of specie, and not of bank notes or bills.d But a tender in bank notes, is now conceded to be legal and sufficient, unless it be specially objected to.-(Wright vs. Reed.e) 2
In Whitbeck vs. Van Ness above referred to, the *284Supreme Court of New York .distinguishes the effect of payments in genuine, from payments in spur pious bank notes; they remark, that though the payee does not. assume upon himself the risque of forgery, yet if the bill be genuine, and the bank fail, the.parties being equally ignorant of the fact, the payment is available.. In a late case, the same Court remarks, in reference to payment in promissory notes, that the question is the same, whether the note be given for a precedent or coiemporary debt, or whether it be the note of the party, or of a third person; ■ that in each case it is, whether it was agreed to be received as payment.-(Porter vs. Talcott and Bowers.a) Again, they say — the acceptance of the note of a third person,- on the sale of a chattel for the consideration money, is payment.b
The case before us is conceived to involve a. prin.ciple essentially different. Bank notes usually pass as current money, implying no warranty of solvency on the part of the payer. From the nature of. the subject, and the usage of commerce, a payment so made, is a full indication of final settlement; much stronger than the passing a promissory note, bond, or bill of -exchange, which custom has not sanctioned the-use of, as money. Good faith is equally demanded in either case; so that for fraud or misrepreSentation respecting the quality of either kind of paper, as well as any other article, or for a false warranty respecting it, doubtless the person paying or passing- it, would be legally responsible.
The idea may be plausible, that if a debtor has passed a currency in payment of his debt, which was believed at the time to have been equivalent to cash, but which in fact wras worth nothing, or only half the nominal sum, the debt, in legal contemplate* *285tion, should remain unexíinguishcd. Such is admitted to be tiro lav/ and justice of the case, if the paper be spurious, because of iho implied warranty of genuineness or title; but accord big to legal analogy, and the nature of commerce, it is impracticable to carry the principle farther. If an article of property be sold in good faith, without warranty, apparently of great value, v/hon in feet it was of little or none, the vendee is without remedy; if in the same contract, and in the samo good faith, lank notes be taken in payment, and the result should afterwards be found so far different, that the pvonrrty prove sound, .but the notes unavailable from the failure of the bank, the loss must, in like maimor “boberne by the vendor. The principle must be the curco where the payment has been made of a pre-existing debt. Bask notes are usually in rapid circulation i-z cash, and are apt to pass through many innocent bauds after the bank has stopped payment, and before notice thereof has reached the place; after which, nothing could ho more embarrassing to commerce, than to upset all such transactions; nor would there be any justice in the principle: it would carry the responsibility back to the holder who first passed the note after the moment of failure, when several subsequent holders may have passed it in like maimer, and -without loss to themselves.
In the present case, the objection to the opinion of the circuit court, goes farther. The notes appear to have only depreciated about fifty per cent- there appears to have 'been no offer to return them — no diligence attempted to collect or receive the money of the Bank ; yet the party thus making payment, was held responsible for the full value of the notes, when at least they appear to have been available to the amount of about *286half their nominal value. But, independent of this latter objection, there is error in the record, for which, the judgment must be reversed, and the cause remanded.
11 johns. R. 409
15 ib 241.
7 Mass. Rep. 286.
3 Stark. 1390
3 T. Rep.554 Ev. 368, 2 Bos. & Pul. 526-3 Starkle 1390, Note Y. Idem, 1392-2 l. &Sound
1 Cow.R.359.
3 Cow. 272, 11 Johns. Rep. 415, note.