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Second, the legislature provided that nothing but gold and silver, United States treasury notes, and national bank notes should be received for taxes; that the collector who received anything else in payment of taxes should be guilty of a misdemeanor; and that the taxpayer who was aggrieved by any steps taken by the collector to enforce a tax which he conceived to be unjust, illegal, or unconstitutional might pay the taxes under protest, and sue within 30 days for a return of the money, to the exclusion of all other remedy by injunction, mandamus, or otherwise, the officer to be protected and indemnified by the state, it acting in good faith.139 The United States supreme court has held that the first of these provisions is unconstitutional, and that the tender of tax-receivable coupons for taxes is equivalent to a tender in gold coin, and withdraws the coupon holder from the power and jurisdiction of the state. 140 It has also been held that, after such tender, an action of trespass lies against the officer making the tax levy and taking proceedings to enforce it, notwithstanding the act of the legislature to the contrary; 141 that exemplary

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139 Laws 1881-82, c. 41. This act was amended two years later, by an act requiring the collector to seal up and mark all coupons tendered for taxes, and requiring their production subsequently, in proof of the tender, and prohibiting actions of trespass or trespass on the case against a collector proceeding to levy the tax after such tender of coupons. Laws 1883–84, c. 421.

140 Poindexter v. Greenhow, 114 U. S. 270, 330, 5 Sup. Ct. 903, 962; Waite, C. J., and Miller, Bradley, and Gray, JJ., dissenting, on the ground that the suit is virtually against the state, and the court is therefore without jurisdiction; while Matthews, J., held that the collector, acting under an unconstitutional statute, was not acting officially. And see the opinion of Matthews, J. (page 299, 114 U. S., and page 918, 5 Sup. Ct.), distinguishing this case from Antoni v. Greenhow, 107 U. S. 769, 2 Sup. Ct. 91. So, too, Chaffin v. Taylor, 116 U. S. 567, 6 Sup. Ct. 518; White v. Greenhow, 114 U. S. 307, 5 Sup. Ct. 923, 962. In Antoni v. Greenhow, 107 U. S. 769, 2 Sup. Ct. 91, and in Moore v. Greenhow, 114 U. S. 338, 5 Sup. Ct. 1020, it was held that the act of January 14, 1882, regulating remedy by mandamus in such cases, and requiring prepayment of the tax and subsequent petition and proof of the genuineness of the coupons tendered, was a constitutional modification of the existing remedy, and that a mandamus would not be directed to the state treasurer to receive the coupons for a state tax; Matthews, J., concurring in this case, on the ground that the United States supreme court had no jurisdiction against a state, which was really the defendant in the person of its treasurer.

141 Chaffin v. Taylor, 116 U. S. 567, 6 Sup. Ct. 518; Willis v. Miller, 29 Fed. 238; and that a distress for the taxes may be restrained by injunction after

damages may be recovered in such case; 142 that the action is, therefore, within the jurisdiction of the United States circuit court, as involving damages to the amount of $500; 148 and that such action will be supported by evidence of the slightest offer as a tender where the state has required its collectors not to receive such coupons for taxes.144

Payment in Tokens-Merchandise.

$ 1407. In Great Britain the payment of wages in tokens has been prohibited by statute 145 In some of the United States the payment of wages in store orders is forbidden in certain cases, states the issuing of bills under a certain sum is forbidden.147

Bills and notes may be made payable in merchandise by agree

146 and in many

tender of coupons, Allen v. Railroad Co., 114 U. S. 311, 5 Sup. Ct. 925, 962; but not without any allegation that the complainant is himself a taxpayer as well as coupon holder, Marye v. Parsons, 114 U. S. 325, 5 Sup. Ct. 932, 962. And see $ 350, supra. 142 Willis v. Miller, 29 Fed. 238. And see Strickler v. Yager, Id. 244.

148 Barry v. Edmunds, 116 U. S. 550, 6 Sup. Ct. 501. And the jurisdiction of the United States court cannot, therefore, be ousted by an apportionment by the treasurer of a tender of money for county taxes and coupons for state taxes, so as to reduce the amount tendered in coupons for state taxes below $300. Green v. Brooks, 28 Fed. 215. The United States courts cannot, however, take jurisdiction of such action between citizens of Virginia, by virtue of the Civil Rights Act (Rev. St. 8 1979). Carter v. Greenhow, 114 U. S. 317, 5 Sup. Ct. 928, 962.

144 Green v. Brooks, supra. 1451 & 2 Wm. IV. c. 37. 146 This is so in some counties of NEW JERSEY, and in some kinds of manufacturing and mining business (2 Gen. St. p. 2312, 88 5, 6, 10). So, in PENNSYLVANIA (Dig. p. 2077, 88 27, 28), the statute requires that mining and manufacturing wages be paid monthly and in lawful money. But this act has been held to be unconstitutional, as “an attempt to prevent persons who are sui juris from making their own contracts." Gordon, J., in Godcharles v. Wigeman, 113 Pa. St. 431, 6 Atl. 354, 4 Cent. Rep. 887.

147 E. g. under $1. DELAWARE (Rev. Code, p. 588, c. 71, § 5, if issued by individuals or co-partnership, such issue being a misdemeanor); MAINE (Rev. St. c. 47, $ 25); MASSACHUSETTS (Pub. St. c. 204, § 20); SOUTH CAROLINA (1 Rev. St. p. 485, $ 1403); TENNESSEE (Shannon's Code, $ 3218, the issue being a misdemeanor); VERMONT (V. S. § 4991). So, in ALABAMA, under a penalty of bearing interest at the rate of 100 per cent. (Code, § 1755). Or under $5. DELAWARE (Rev. Code, c. 71, § 7, if notes of bank or corpora

148

ment. 1 But such a note is more properly a contract for property; e. g. a note payable in United States bonds. 149 If it is payable in money, a tender of merchandise is unavailing 150 But if payable in merchandise, money may be tendered,151 and, if default is made in delivery of the merchandise called for, the amount becomes due in money.152

If a note is payable in portable goods, e. g. in salt or cotton, the place for payment is the residence of the payee. 153 But if the goods are bulky, like lumber or farm produce, the holder must demand them at the maker's yard or farm before he can sue on the note for a money demand. 15 Some cases, however, have held that a prior demand is not necessary.165

If the maker tenders payment of such a note, he must do it in a

154

tion out of the state); KENTUCKY (St. $$ 1350, 1386); MARYLAND (Pub. Gen. Laws, art. 11, $ 23, par. 5); MASSACHUSETTS (Pub. St. C. 204, $ 9, other than bank notes); OHIO (Bates' Ann. St. § 3821-15). Or under $20. ARKANSAS (Sand. & H. Dig. $ 553). For the English statute upon this subject, see $ 106, supra.

148 E. g. by a contemporaneous memorandum on the note, making it payable in cloth. Fletcher v. Blodgett, 16 Vt. 26. So, a note may be paid in wheat, if it is delivered and received as such. Smith v. Hobleman, 12 Neb. 502, 11 X. W. 753; or in land, the burden of proving such payment being on the party that avers it, Kelsey V. McLaughlin, 10 Neb. 6, 4 N. W. 361. So, if one agrees to do a certain thing on payment of a note, and accepts goods in satisfaction of the note and surrenders the note, it is a payment. Bacon v. Lamb, 4 Colo. 578. As to notes payable in merchandise or work, see $ 101, supra.

149 Easton v. Hyde, 13 Jinn. 90 (Gil. 83). 150 Lang v. Waters' Adm'r, 47 Ala. 625. 151 Ferguson v. Hogan, 25 Jinn. 135.

152 Hardeman v. Cowan, 10 Smedes & M. (Miss.) 486; Campbell v. Clark, 1 Hemp. 67, Fed. Cas. No. 2,355a.

153 Goodwin v. Holbrook. 4 Wend. (N. Y.) 377; Campbell v. Clark, 1 Hemp. 67, Fed. Cas. No. 2,355a. So, by statute in ILLINOIS (Hurd's Rev. St. C. 133, $ 1); IOWA (Code, § 3057).

154 Rice v. Churchill, 2 Denio (N. Y.) 145; Lobdell v. Hopkins, 5 Cow. (N. Y.) 516. So, by statute in ILLINOIS (Hurd's Rev. St. c. 13.), $ 1); IOWA (Code, $ 3057). In Vance v. Bloomer, 20 Wend. (N. Y.) 196, it was held that a payment in "ready-made clothing" might be made in parcels, but must be demanded before suit.

155 Campbell v. Clark, 1 Hemp. 67, Fed. Cas. No. 2.355a; Stewart v. Morrow, 1 Grant, Cas. (Pa.) 201. But by statute in IOWA, a demand and a refusal, or the allowance of a reasonable time, is necessary. Code, $ 3036.

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reasonable manner, and on notice before maturity as to the place for delivery." And the tender must be of goods of the quality called for,157 and at the stipulated time.158 If the property is perishable, it must be taken care of by the person making the tender until it is delivered, at the cost, however, of the payee.'

. 159

Payment in Work.

160

§ 1408. Work may also be done and received under an agreement in payment of a bill or note.1 And such payment and agreement may be proved by parol.161 And it may be shown by parol evidence that work previously done for one partner was by subsequent agreement accepted in satisfaction of a note held by the partnership. 162 If the note is payable in specific work, the payee may demand it, or the maker may tender it or the amount named after maturity.163 If payable at his option, before maturity, in work, he must tender the work or be liable for the money.

After default it becomes a money demand, and action may be brought on it by an assignee.165

164

156 Barns v. Graham, 4 Cow. (N. Y.) 452. Custom may regulate the manner of delivery, e. g. of (rude oil to be delivered in barrels furnished by the payee. Knight v. Petroleum Co., 44 Vt. 472.

157 Fisk v. Holden, 17 Tex. 408. 158 Pratt v. Graff, 15 Ind. 1.

159 COLORADO (Mills' Ann. St. § 253); ILLINOIS (Hurd's Rev. St. C. 133, $ 2); IOWA (Code, $ 3059). And if it is sold by the maker after tender and refusal, he cannot recover the full contract price. Harris Mfg. Co. v. Marsh, 49 Iowa, 11.

160 Jennings v. Davis, 31 Conn. 134; and will discharge both debt and lien securing it, Martin v. Draher, 5 Watts (Pa.) 544; and may be proved under a plea of payment, Hitchcock v. Hassler, 16 Neb. 467, 20 N. W. 396.

161 If not an original contemporaneous agreement, Goodrich v. Stanley, 23 Conn. 79; although even such agreement has been held to be provable by parol evidence, Jones v. Snow, 64 Cal. 436, 2 Pac. 28.

162 Camp v. Page, 42 Vt. 739; although the subsequent agreement may fail for want of consideration, Gimmeson v. Butler, 12 Ill. App. 399.

163 Johnson v. Seymour, 19 Ind. 24. But the maker may waive his right to insist on the work as payment on a note by bringing an action for its value. Sherer v. ('ollins, 106 Mass. 417.

164 Nipp v. Diskey, 81 Ind. 214; Schuessler v. Watson's Adm’r, 37 Ala. 98. 165 Schnier v. Fay, 12 Kan. 184.

Part Payment.

166

$ 1409. Tender of part of the amount due on a bill or note is no de. fense even pro tanto.1 So, if a note matures on default in payment of interest, a subsequent tender of interest will not affect the fact that the principal has become due by default.167 And a sufficient tender must include statutory damages that are due, and, if made after suit begun, the costs of suit.168 It is not necessary, how ever, that it should include, as a separate and additional item, the amount claimed in a subsequent common count for money had and received. 169

The part payment of a bill or note operates, in general, as a discharge pro tanto.170 Thus, a part payment by the acceptor must be taken into account before reckoning the dividend due to the holder out of the proceeds of an attachment. 171 So, part payment made by a bankrupt, before or after bankruptcy, must be deducted before proof of claim against his estate. 172 A dividend received is as much a part payment as any other. 173 In like manner, cash received from the proceeds of a consignment against which a bill is drawn must be credited by the holder before proof made against the estate of a bankrupt drawer. 174

And so, in general, the proceeds of any collateral received by the holder. 176

168 Byles, Bills, 234; Cotton v. Godwin, 7 Mees. & W. 147; Hesketh v. Fawcett, 11 Mees. & W. 356; although the debtor may be entitled to a set-off for the residue, Searles v. Sadgrave, 5 El. & Bl. 639.

167 Stephens v. Association, 76 Ind. 109.
168 Goodwin v. Cremer, 18 Q. B. 757; Smith v. Anders, 21 Ala. 782.
169 Sawyer v. Baker, 20 N. H. 525.

170 Benj. Chalm. Dig. art. 233; Miller v. Montgomery, 31 ml. 350; and may be proved under a plea of payment, Lord v. Ferrand, 13 Law J. Exch. 111.

171 Cowperthwaite v. Sheffield, 1 Sandf. (N. Y.) 416.
172 In re Weeks, 13 Y. B. R. 263, Fed. Cas. No. 17,319.

173 Lincoln v. Bassett, 23 Pick. (Mass.) 154. And after proof in bankruptcy with undue allowance for collateral (which afterwards became unavailable), and a discharge granted on such proof, the dividend must be deducted before a corrected proof can be made. Ex parte Worrall, 1 Cox, Ch. 309.

174 Ex parte Harris, 2 Low. 368, Fed. Cas. No. 6,109.

175 If the collateral has been levied on and bought in, in an irregular manner, it is enough to credit the actual value of the property. Duden v. Waitzfelder, 16 Hun (N. Y.) 337.

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