"And a receipt of payment given on the bill for goods sold, a receipt being by law explainable by evidence aliunde, does not bar the vendor from recovering for goods sold, where the acceptance of the note is not intended to serve by way of payment and satisfaction. Vancleef v. The-rasson, 3 Pick. 12. So, if goods are sold to be paid for by a note made by one person and indorsed by another, and a note of corresponding description is offered and received, and the goods are thereupon delivered, and it appears afterwards that the indorsement was a forgery, it was held that such delivery of the note was no payment, and an action would lie for the goods. Ellis v. Wild, 6 Mass. 321. With this view of the law as to the presumption of fact, arising from the acceptance of a negotiable promissory note for a pre-existing debt, whether it be the note of the same parties originally liable, or part of the same parties, or the note, genuine or otherwise, of a third person, we repeat the opinion that we think the general ruling under which the evidence went to the jury was correct, and was sufficiently favorable for the defendants." In New York, the taking of a note is not prima facie payment. Burdick v. Green, 15 Johns. 247; Hughes v. Wheeler, 8 Cow. 77.
1 Lightbody v. Ontario Bank, 11 Wend. 9; Ontario Bank v. Lightbody, 13 Wend. 101; Gilman v. Peck, 11 Vt. 516; Wainwright v. Webster, 11 Vt. 576; Frontier Bank v. Morse, 22 Me. 88; Timmins v. Gibbins, 18 Q. B. 722; 14 Eng. Law & Eq. 64, and Bennett's note; U. S. Bank v. Georgia, 10 Wheat. 333. See Story on Bills of Exchange, § 225 and note; Ib.
§ 1347. Where payment is made bond fide to a bank in its own notes, and they turn out to be forged, the bank must bear the loss; and this rule obtains on the ground that the bank has superior means of knowing whether the notes are genuine, and that it is guilty of negligence in accepting them without proper examination.4 So, also, if a bank pay a forged check on itself, it must bear the loss.5 But payment to a banker or other person by accepted bills or bank-notes not his own which proved to be forged, is not a sufficient payment,6 unless he be guilty of negligence in the discovery of the forgery by which the payee is deprived of his remedy against the other party.7
§ 419; Fogg v. Sawyer, 9 N. H. 365; Roberts v. Fisher, 65 Barb. 303 (1873); 43 N". Y. 159, holding the same rule to apply to promissory notes. But see Bayard v. Shunk, 1 W. & S. 92; Redfield & Bigelow's L. C. 617.
2 Bayard v. Shunk, 1 Watts & Serg. 92; Scruggs v. Gass, 8 Terg. 175; Lowrey v. Murrell, 2 Porter, 280; Young v. Adams, 6 Mass. 1S2.
3 Lightbody v. Ontario Bank, 11 Wend. 9; Harley v. Thornton, 2 Hill, S. C. 509. See, also, U- S. Bank v. Bank of Georgia, 10 Wheat. 333; Thomas v. Todd, 6 Hill, 340; Mudd v. Reeves, 2 Harr. & Johns. 368; Ramsdale v. Horton, 3 Barr, 330; Eagle Bank v. Smith, 5 Conn. 71.
4 See U. S. Bank v. Bank of Georgia, 10 Wheat. 333, in which this whole question is very elaborately considered. Gloucester Bank v. The Salem Bank, 17 Mass. 33.
5 Levy v. The Bank of U. S., 1 Bin. 27; Bank of St. Albans v. F. & M. Bank, 10 Vt. 141.
6 See cases cited supra; Markle v. Hatfield, 2 Johns. 455; Young v. Adams, 6 Mass. 182; Stedman v. Gooch, 1 Esp. 5; Eagle Bank v. Smith, 5 Conn. 71; Jones v. Ryde, 5 Taunt. 488.
7 Smith v. Mercer, 6 Taunt. 76; Gloucester Bank v. Salem Bank, 17 Mass. 33.
§ 1348. It is settled that contracts made within the insurrectionary States during the late war, stipulating for payment in the money of the Confederate government, are valid if not made in aid of the rebellion; and that, though payable in "dollars," evidence is admissible to show that the word refers to dollars of the Confederacy.1 But it is otherwise if they were made in furtherance of the war against the United States.2 It follows that payment in the first class of cases made in Confederate currency would be a good discharge of the contract, and that in the second class payment so made could not be recovered back. In the first class, if an action were brought on the contract after the failure of the Confederacy, the measure of damages would be the actual value of the Confederate currency at the time and place of the contract in the money of the United States.3
§ 1349. There is conflict of authority as to whether payment made in Confederate money is good when there is no evidence that payment was to be made in such money. It has been held in Alabama that if the contract were for payment in "dollars," this term, primÔ facie, would be construed to mean dollars in the lawful money of the United States;4 and if this be correct, it would follow that a tender of payment in Confederate currency, not accepted, would be void in the legal courts of the land. But such a presumption must run violently against the truth.5 There are other cases, however, which uphold the doctrine that payment in Confederate money, in the case under consideration, is not valid.6 And there is some ground for the position; for, as
1 Thorington v. Smith, 8 Wall. 1 (1868); Wilcoxen v. Reynolds, 46 Ala. 529 (1871); Delmas v. Insurance Co., 14 Wall. 661 (1871); Hanauer v. Woodruff, 15 Wall. 439 (1872). Contra, Casey v. Turner, 32 Tex. 64 (1869); Heard v. Swift, Ib. 515; Hale v. Wilkinson, 21 Gratt 75 (1871).
2 Hanauer v. Woodruff, supra.
3 Thorington v. Smith, 8 Wall. 1 (1868).
4 Wilcoxen v. Reynolds, 46 Ala. 529 (1871); Taunton v. Mclnnish, Ib. 619.
5 See Mezeix v. McGraw, 44 Miss. 100 (1870).
6 Cooksey v. McCrery, 27 Ark. 303 (1871); CarlLee v. Carlton, Ro. 379; Vinsant v. Knox, Ib. 266; Thompson v. Mankin, 26 Ark. 586; Jemi-Bon v Governor, 47 Ala. 390; George v. Terry, 26 Ark. 160. See Harper v. Harvey, 4 W. Va. 539 (1871).
Confederate money was made a legal tender for debt, the contractee acted, in some sense, under compulsion in receiving it.1 He must either receive it or expect to lose his right of action by the Statute of Limitations, the suspension of which was not to be foreseen. But the courts have more generally held that payment in Confederate currency is good in these as well as in the cases mentioned in the preceding section.2 It has, however, been thought otherwise of such payments made after the failure of the Confederacy,3 though it would seem without good reason.