1 In Bayard v. Shunk, 1 W. & S. 92, Gibson, C. J., expounds and enforces this view with great vigor of language and logic. He says: "Cases in which the bills and notes of a third party were transferred for a debt are not to the purpose; and most of those which have been cited are of that stamp. Where the parties to such a transaction are silent in respect to the terms of it, the rules of interpretation are few and simple. If the securities are transferred for a debt contracted at the time, the presumption is that they were received in satisfaction of it; but if for a precedent debt, it is that they are received as collateral security for it; and in either case it may be rebutted by direct or circumstantial evidence. But by the conventional rules of business, a transfer of bank notes, though they are of the same mould and obligation betwixt the original parties, is regulated by peculiar principles, and stands on a different footing. They are lent by the banks as cash; they are paid away as cash; and the language of Lord Mansfield in Miller v. Race, 1 Burr. 452, was not too strong when he said, they are treated as money, as cash, in the ordinary course and transaction of business by the general consent of mankind, which gives them the credit and currency of money to all intents and purposes; they are as much money as guineas themselves are, or any other coin that is used in

common payments is money or cash.' If such were their legal character in England, where there was but one bank, how emphatically must it be so here where they have supplanted coin for every purpose but that of small change, and where they have excluded it from circulation almost entirely. It is true, as was remarked in Young v. Adams, 6 Mass. 182, that our bank notes are private contracts without a public sanction like that which gives operation to the lawful money of the country; but it is also true that they pass for cash, both here and in England, not by force of any such sanction, but by the legislation of general consent, induced by their great convenience, if not the absolute necessities of mankind. Miller v. Race is a leading case which has never been doubted in England, or, except in a case presently to be noticed, in America; and it goes very far to rule the point before us; for if the wheel of commerce is to be stopped or turned backwards in order to repair accidents to it from impurities in the medium which keeps it in motion, except those which, few and far between, are occasioned by forgery, bank notes must cease to be a part of the currency, or the business of the world must stand still. The weight of authority bearing directly on the point is (1841) decisively in favor of the position that bona fide payment in the notes of a broken bank discharges the debt.

Camidge v. Allenby, 6 B. & C. 373; Scruggs v. Gass, 8 Yerg. 175; Young v. Adams, 6 Mass. 182; against Lightbody v. Ontario Bank, 11 Wend. 9; affirmed, 13 id. 101.

"To assume that the solvency of the bank at the time of the transfer is an inherent condition of it is to assume the whole ground of the argument. The conclusion concurred in by all, however, was that the medium must turn out to have been what the debtor offered it for at the time of payment. How does that consist with the equitable principle that there must be, in every case, a motive for the interference of the law, but that it must be stronger than any to be found on the other side; else the equity being equal, and the balance inclining to neither side, things must be left to stand as they are (Fonb. B. 1, ch. V, § 3; id. ch. IV, § 25); in other words, that the law interferes not to shift a loss from one innocent man to another equally innocent, and a stranger to the cause of it. The self-evident justice of this would be proof, were it necessary, that it is a principle of the common law. But we need go no further in search of authority for it than Miller v. Race, in which one who had received a stolen bank note for full consideration in the course of his business was not compelled to restore it. It was intimated in the Ontario Bank v. Lightbody that there was a preponderance of equity in that case, not on the side of him who had lost the note, but of him who had last given value for it. Why last? The maxim, prior in tempore potior in jure, prevails between prior and sub

sequent purchasers indifferently of a legal or an equitable title. It is for that reason the owner of a stolen horse can reclaim him of a purchaser from the thief; and were not the field of commerce market overt for everything which performs the office of money in it, the owner of a stolen note might follow it into the hands of a bona fide holder of it. But general convenience requires that he should not; and it was that principle, not any consideration of the equities betwixt the parties, which ruled the case of Miller v. Race. But a more forcible illustration of the principle, were the case indisputably law, might be had in Levy v. Bank of the United States, 4 Dall. 234; S. C., 1 Bin. 27, in which the placing even a forged check to the credit of a depositor as cash- a transaction really not within any principle of conventional law was held to conclude the bank; and to this may be added the entire range of cases in which the purchaser of an article from a dealer has been bound to bear a loss from a defect in the quality of it. And for the same reason that the law refuses to interfere between parties mutually innocent, it refuses to interfere between those who are mutually culpable; as in the case of an action for negligence. What is there, then, in the case before us to take it out of this great principle of the common law? The position taken by the courts of New York is that every one who parts with his property is entitled to expect the value of it in coin. Doubtless he is. He may exact payment in precious stones, if such is the bargain. But

where he has accepted without reserve what the conventional laws of the country declare to be cash, his claim to anything else is at an end. Bills of exchange and promissory notes enter not into the transactions of commerce as money; but it impresses even these with qualities which do not belong to ordinary securities. The holder of one of them, who has taken it in the ordinary course, can recover on it, whether there was a consideration between the original parties or not. . . . "The assertion that it is always an original and subsisting part of the agreement that a bank note shall turn out to have been good when it was paid away can be conceded no farther than regards its genuineness. That genuine notes are supposed to be equal to coin is disproved by daily experience, which shows that they circulate by the consent of whole communities at their nominal value when notoriously below it. But why hold the payer responsible for the failure of the bank only when it has been ascertained at the time of the payment, and not for insolvency ending in an ascertained failure afterwards? As the bank may have been actually insolvent before it closed to let the world know it, we must carry his responsibility back beyond the time when it ceased to redeem its notes, if we carry it back at all. Were it not for the conventional principle that the purchaser of a chattel takes it with its defects, the purchaser of a horse with the seeds of mortal disease in him might refuse to pay for him though his vigor and usefulness were yet unim

paired; and if we strip a payment in bank notes of the analogous cash principle, why not treat it as a nullity, by showing that the bank was actually, though not ostensibly insolvent at the time of the transaction. It is no answer that the note of an unbroken bank may be instantly converted into coin by presenting it at the counter. To do that may require a journey from Boston to New Orleans, or between places still further apart, and the bank may have stopped in the meantime, or it may stop at the instant of presentation when situated where the holder resides. And it may do so when it is not insolvent at all, but perfectly able eventually to pay the last shilling. This distinction between previous and subsequent failure evinced by stopping before the time of the transaction or after it is an arbitrary and impracticable one. To such a payment we must apply the cash principle entire, or we must treat it as a transfer of negotiable paper, imposing on the transferee no more than the ordinary mercantile responsibility in regard to presentation and notice of dishonor. There is no middle ground.