2 Port. 280 | Ala. | 1835
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.
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
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.
In Whitbeck vs. Van Ness above referred to, the
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*
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
11 johns. R. 409
15 ib 241.
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.