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and only the value of such currency could be recovered. 67 And in Virginia, where a check given in January, 1863 (which the bank would only pay in such currency), was surrendered by the holder, and a new note taken, it was held to be a new transaction for a loan in Confederate currency.88 But in Georgia there is no presumption that a note made in 1863 was to be paid in that currency. So, lawful money may be recovered on a note made in Louisiana in 1862, payable in "dollars," where a part payment had been already made in lawful money, without any claim that it was payable in Confederate currency.70

On the other hand, if Confederate currency is current at the time and place of payment, and is paid and accepted as such in good faith, it is sufficient. 71 But payment in depreciated bank bills, in fraud

33 Tex. 316; Wilcoxen v. Reynolds, 46 Ala. 529; Whitfield V. Riddle, 52 Ala. 467; Carmichael v. White, 11 Heisk. (Tenn.) 262. See, supra, $ 102. The burden is on the defendant, in such case, to show that Confederate notes were meant. Neely v. McFadden, 2 S. C. 169; Halfacre v. Whaley, 4 S. C. 173. But Confederate currency need not be received in payment of a judgment rendered in Tennessee in 1870 upon a note bearing date in 1861. Dillon v. Smith, 10 Heisk. 595.

67 Act of 1867; Cowan v. McCutchen, 43 Miss. 207; Mezeix v. McGraw, 44 Vliss. 100. So, in North Carolina, under act of 1866, as to a bond dated June, 1863, Palmer v. Love's Ex’rs, 75 N. C. 163; or a note in November, 1862, Sowers v. Earnhart, 64 N. C. 96; or, in 1864, for property purchased at an administrator's sale, after notice that the sale was "for such currency as would be received by creditors of the estate.” Laws v. Rycroft, Id, 100; but not as to a note made in February, 186.), pa yable in twelve months "in the currency of the country that which will pay taxes," Johnson v. Miller, 76 x. C. 439; or a note made in November, 1863, payable in two years, "in the current funds of the country when due,” McKesson v. Jones, 66 N. C. 258. But a Mississippi statute, making such currency a legal tender for state taxes, does not apply to taxes after reconstruction of the state at the end of the war. Taylor v. Thomas, 22 Wall. 479.

68 Dearing v. Rucker, 18 Grat. 426.
69 Bonner y. Nelson, 57 Ga. 133.
70 Cook v. Lillo, 103 C. S. 792.

71 Berry v. Bellows, 30 Ark. 198; Glenn v. Case. 25 Ark. 616; Ritchie v. Sweet, 32 Tex. 333; Piegzar v. Twohig. 37 Tex. 225; Mercer v. Wiggins, 74 X. C. 48; Sharp v. Harrison, 10 Heisk. (Tenn.) 573; Washington v. Burnett, 4 W. Va. 81; Jarrett v. Ludington, 9 W. Va. 333; Lester v. Manufacturing Co., 1 Hun (N. Y.) 288. Especially if the note is surrendered, Vance v. Cooper, 22 La. Ann. 308; or the payment entered on the note as a credit, Freeman v.

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of the owner, to a pledgee who marked the note “Paid” and surrendered it, is no defense against the owner." So, payment cannot be made in Confederate currency to any one holding such paper in a fiduciary capacity: 13 And such currency received under duress will not be a valid payment." But if a note is made payable in Confed

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Bass, 34 Ga. 355; Green v. Jones, 38 Ga. 347; Luzenberg v. Cleveland, 19 La. Ann. 473. So, whether it is indorsed or not. Norment V. Brown, 79 X. C. 363. So, a payment to a court clerk, in satisfaction of a judgment. Binford v. Bulletin Co., 10 Heisk. (Tenn.) 355. So, the indorser may sue the maker after making payment in Confederate currency. Lyon v. Robertson, 50 Ala. 74. So, payment in depreciated currency, before the war, received as such, is satisfaction to its full nominal value. Hall v. Craige, 65 N. C. 51. But a payment in commonwealth paper has been held to be payment only to the amount of its value in specie. White's Ex’rs v. Guthrie, 1 J. J. Varsh. (Kr.) 503. A tender of Confederate currency may be refused, Spann v. Glass' Ex'rs, 35 Tex. 761; Graves v. Hardesty, 19 La. Ann. 186; notwithstanding a verbal promise to receive such currency in 12 months, in payment of a note previously made in 1862 for a loan in that currency, such promise being without legal consideration, Wooten v. Sherrard, 71 N. C. 374.

72 McLemore v. Hawkins, 46 Miss. 715. 13 "E. g. to a trustee, Alley v. Rogers, 19 Grat. (Va.) 366; or to the state, as trustee of the school fund, under authority of a subsequent statute (in aid of the war). New Orleans, St. L. & C. R. Co. v. State, 52 Miss. 377. But a trustee receiving payment of a promissory note in Confederate notes, as then received ordinarily by prudent men, will not be liable for so doing. Campbell v. Miller, 38 Ga. 304. So, an administrator cannot receive such currency in pay. ment, Kleberg v. Bonds, 31 Tex. 611; or although a note is especially so payable, Casey v. Turner, 32 Tex. 64. And an agreement of the administrator to receive Confederate currency, if the heirs would receive it (which they did not assent to), is, of course, no payment. Martin v. Singleton, 23 La. Ann. 11. But, if has been used by the administrator to pay debts of the estate, it will be a good payment. Hendry v. Cline, 29 Ark. 414. So, an executor cannot receive a payment of Confederate currency from himself as a debtor individually. Wilson v. Powell, 75 X. C. 468. So, a sheriff's officer could not receive such currency in April, 1865. Sirrine v. Griffin, 40 Ga. 169. And payment cannot be made to an agent in such currency. Maloney v. Stephens, 11 Heisk. (Tenn.) 738; Griffin v. Walker, 36 Tex. 88; Fretz v. Stover, 2 Wall. 198. But see, contra, as to payment of life insurance premiums to an agent during the war, Sands v. Insurance Co., 30 Y. Y. 626; Robinson 1. Society, 42 X. Y. 54.

74 Anderson v. Lewis, 31 Tex. 675; Harrell v. Barnes, 34 Tex. 413; although the actual value of the currency paid will be credited in such case, Harshaw v. Dobson, 67 X. C. 203. But if the payee loans it to another, and judgment

erate currency, which was then current at the place, and a part payment is subsequently indorsed upou the note, it will only be a satisfaction to the amount named in the indorsement."

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Designated Currency.

77

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$ 1400. Whenever commercial paper is payable in foreign currency, the value of such currency must be computed at the usual rates of exchange. But a bank is only obliged to pay a depositor's checks in money, and cannot be required to pay in exchange on any other place.76 An instrument payable "in good notes" will be satisfied by tender of a note, with two good indorsers, although the maker is insolvent.? If it is payable in “greenback currency,” the tender must be in United States legal tender notes, not in national bank notes."

If "in currency at its specie value," it must be specie.? So, if payable "in current money of Kentucky," or "in current money of the state of Alabama.' But bank notes have been held to be intended by a note payable "in current money of the state of New York or Pennsylvania," or “in the common currency of Arkansas.” 8 2 So, it has been held that Confederate currency was intended, or at least sufficient, where the note was payable "in common currency at date of matu

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is recovered on it, it will be a payment pro tanto. McCartney v. Wade, 2 Heisk. (Tenn.) 369. And mere fear of being denounced to the rebel authorities is not duress to render the payment void. Vander Hoven v. Nette, 32 Tex. 183.

75 Stewart v. Salamon, 94 U. S. 434. For Scaling Acts of the several Southern States, the reader is referred to a later chapter on “Damages."

76 Hogue v. Edwards, 9 Ill. App. 148.
77 Polk v. Frash, 61 Ind. 206.
78 Burton v. Brooks, 23 Ark. 215.

79 Caldwell v. Craig, 22 Grat. (Va.) 310; the note being dated in June, 1305. But "undepreciated currency" does not mean "coin.” Blackburn v. Brooks, 65 N. C. 413.

80 Bank notes not being intended. McChord v. Ford, 3 T. B. Mon. (Ky.) 166: Carter v. Penn, 4 Ala. 110.

81 The note being, therefore, nonnegotiable, since such bank notes of one state were at a discount in the other, Lieber v. Goodrich, 5 Cow. (N. Y.) 186: and such note not being an instrument "payable in money only," Chambers v. George, 5 Litt. (Ky.) 335. 82 Dillard v. Evans, 4 Ark, 175.

rity.” 83

But parol evidence is not admissible to show that "current funds” were commonly understood to mean depreciated bank notes. 84

United States Legal Tender. § 1401. The United States Legal Tender Act has been already considered in an early chapter of this work.85 It has been held to be constitutional and binding as such upon creditors, 86 and applicable to instruments made before its passage and maturing afterwards,87 but not to such as were made expressly payable in gold or specie.$ 8 And even if a note is payable in gold under an express agreement made after the recording of a collateral mortgage, the agreement will be binding upon a subsequent judgment creditor, and will make the mortgage a lien for the amount in gold; 89 and, if it is payable and paid in specie, no premium will be allowed on the specie paid. So, if a note made after the Legal Tender Act is payable "in American gold,” it must be so paid.o1 So, a bond which became due before the act, and was payable "in gold and silver coin, lawful money of the United States"; " or a contract payable "in English golden guineas and other gold and silver coin at the present established weight"; 93 or a note parable "in gold and silver coin or its equivalent in currency." 94

83 Bell v. Joyce, 33 Tex. 479; but not if "payable in current funds at the time the note falls due,” and they were not current at that time, Hilliard v. Moore, 65 X. C. 540.

84 Marc v. Kupfer, 34 Ill. 286. For other expressions indicating payment in currency, see $ 99, supra.

85 See $ 98, supra.

86 Jtwood v. Cornwall, 28 Mich. 336; Lick v. Faulkner, 25 Cal. 401; Davidson v. Peticolas, 34 Tex. 27; Maynard v. Newman, 1 Nev. 271.

87 Hepburn v. Griswold, 8 Wall. 604; Bigler v. Waller, 14 Wall. 297; Railroad Co. v. Johnson, 15 Wall. 195.

88 Trebilcock v. Wilson, 12 Wall. 687; Bobo v. Goss, 1 S. C. 262; Lafitte v. Rivera, 23 La. Ann. 32. But see, contra, Whetstone v. Colley, 36 Ill. 328; Buchegger v. Shultz, 13 Mich. 420. And for cases on either side of this question, see $ 98, supra. 89 Poett v.

Stearns, Cal. 78. 90 Tooke v. Bonds, 29 Tex. 419. 91 McGoon v. Shirk, 54 Ill. 408. 92 Bronson v. Rodes, 7 Wall. 245. ** Butler v. Horwitz, 7 Wall. 259.

84 Burnett v. Stearns, 33 Cal. 468; or "in gold or its equivalent in U. S. currency,” Bridges v. Reynolds, 40 Tex. 204. RAND.C.P.-128

(2033)

Payment in Bank Bills.

§ 1402. Although bank notes do not differ in most respects in their legal character from other notes, they are often regarded by usage and law as money.

Thus, in an action on an original debt, it will be presumed to be paid if bank bills have been received for it.95 So, if a stakeholder receives country bank notes, and treats them as money, the amount may be recovered in an action against him as so much

And it has been held that notes of a bank may be received by an agent as money in payment of a bill drawn on the bank, although it failed two days afterwards.97

In like manner, bank notes are a valid cash tender, unless objection is made to them at the time they are offered;

98 and if the payee of a

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money."

95 Chit. Bills, 451; Hebden v. Hartsink, 4 Esp. 46; Southcot v. Watson, 3 Atk. 226. And bank bills are sufficient as a money consideration for an annuity purchased. Wright v. Reed, 3 Term R. 554. So, a certificate of deposit payable in "currency" may be paid in lawful bank notes. Klauber v. Biggerstaff, 47 Wis. 551, 3 N. W. 357. In OREGON, no bank is authorized to issue or circulate paper money. Const. art. 11, § 1. In ALABAMA, the circulating of unauthorized paper as money renders the persons circulating such paper, as well as the officers of the corporation issuing it, liable as makers (Code, s 1195). In many of the United States, the banking acts provide against the issue, by banks or others, of notes intended to circulate as money, except as expressly authorized. ARKANSAS (Sand. & H. Dig. § 547; including municipal corporations, Id. $ 550); CALIFORNIA (Cr. Code, $ 648, the offense being made a felony); COLORADO (Mills' Ann. St. g 532); DELAWARE (Rev. Code, c. 71, § 5); GEORGIA (Code, $ 1935); ILLINOIS (Hurd's Rev. St. C. 38, 8 54); LOUISIANA (Rev. Laws, $ 292); MARYLAND (Pub. Gen. Laws, art. 29, § 4); MASSACHUSETTS (Pub. St. C. 204, § 18); MISSOURI (Rev. St. $ 703); NEVADA (Gen. St. $ 939); NEW JERSEY (1 Gen. St. p. 132, $ 58); NEW YORK (Laws 1892, c. 689, § 87, such notes being void); OHIO (Bates' Ann. St. $$ 3821-8, 3821-75); PENNSYLVANIA (Dig. p. 192, g 100); RHODE ISLAND (Gen. Laws, c. 178, § 35; such notes being void, Id. $ 36); SOUTH CAROLINA (2 Rev. St. p. 363, $ 297); TENNESSEE (Shannon's Code, & 3217); VERMONT (V. S. § 4989): VIRGINIA (Code, g 3830); WEST VIRGINIA (Code, c. 151, $ 14); WISCONSIN (Sanb. & B. Ann. St. $ 4510). Sutler's tickets, for use in the army, are not within the meaning of such a statute. Weston v. Myers, 33 Ill. 424.

96 Pickard v. Bankes, 13 East, 20. 07 Union v. Greene, 1 Hurl. & N. 884. 98 Brown v. Saul, 4 Esp. 267; Lockyer v. Jones, Peake, N. P. 239, note;

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