The opinion of the co'urt was delivered by
Prout, J.
This is an action of general assumpsit. The cause was referred by consent, and, on the hearing before the referee, the plaintiff presented and claimed to recover the amount of the note made a part of the case. No revenue stamp was affixed to the note *182until a few days before the trial, when the plaintiff, without the permission of the defendant, affixed thereto the proper stamp. Had the defendant stood in the relation of, and with the rights of a guarantor, endorser or surety, with respect to the note objected to, and his liability thereon depended wholly upon such relation and the validity of the dote, a very different question would have arisen from the one presented by the facts in this case. Conceding, but without deciding the question, that the note was improperly used before the referee, because it was not stamped as required by the act of Congress, the question then is, whether the plaintiff is not entitled to recover upon the facts reported. It is a fact found, that the note objected to “ was given, on the day of its date, by the- defendant to the plaintiff for property then sold and delivered to the defendant by the plaintiff.” The note was given upon this consideration, which was adequate and ample, and the property sold and delivered has not been otherwise paid for. If the note was tainted with illegality from any cause and invalid, and the plaintiff was in no way connected with the infirmity thus affecting it, this does not, in legal effect, upon the authority of repeated decisions, amount to ^payment of the plaintiff’s claim for the property thus sold the defendant. And the c'ase in this particular, stands upon the same ground upon which the cases are put and rest, where it is held that payment of a debt in counterfeit or in the worthless bills of a broken bank, is, in legal effect, no payment. In all such eases a party may fall back, under a declaration adapted to the facts, and claim, upon the original consideration, and recover upon the liability arising therefrom. And, in this case, treating the defendant’s note, as he claims it should be, as inoperative and worthless, yet he has had the plaintiff’s property, upon a sale to him, and has not' paid for it. Upon these facts, without reference to the note, we can see no reason why he should not.
Judgment of the county court affirmed.