Kent, Ch. J.
The justice of this ease is clearly with the defendant in error. He parted with his goods to the plaintiff, without .receiving the compensation which was intended. It would be matter of regret, if the law obliged us to regard a payment in counterfeit, instead of genuine bank bills, as a valid payment of a debt, merely because the creditor did not perceive and detect the false bills, at the time.of payment. The reasonable doctrine, and one which undoubtedly agrees with the common sense of mankind, is laid down by Paulus in the Digest; and has been incorporated into the French law. He says, that if a creditor receive by mistake any thing in payment, different from what is due, and upon the supposition that it was the thing actually due, as if he receives brass instead of gold, the debtor is not discharged, and the creditor, upon offering to return that which he received, may demand that which is due by the contract. Si quumcturum tibi promisissem, iili ignoranii quasi aurum ces soherim, non iberabor. (Dig. 46. 3. 50. Pothier, Traité, des Obligationes, No. 495.)
But there are some ancient dicta in the English law, which advance a contrary doctrine, in respect to gold and silver coin. It is said, that the creditor must at his peril count and examine the money at the time he receives it. Bank bills are not money, in the strictly legal and technical sense of the term, but as they circulate, and are received as money, in the ordinary transactions of business, it becomes material to examine into the authority and solidity of these positions in the books. In Shepherd’s Touchstone, (p. 140.) it is laid down, and with a reference to the Terms de Ley, that if a payment be made partly with counterfeit coin, and the party accept it, and put it up, it is a good payment. 'Shepherd’s Touchstone is supposed to be the work of Mr. Justice Dr.deridge, and as such, it has always been considered as a book of authority; but it loses some of its character for accuracy, when we [460] consider it as a posthumous and surreptitious publication. The book to which it refers, gives no increased weight to the dictum. The same doctrine is contained in Wade’s case; (5 Co. 114.) but it is supported only on the authority of the case of Vane v. Studley, which is there cited, in which it is said to have been adjudged, that where the lessor demanded rent of his lessee, according to the condition of re-entry, and the lessee paid the rent to the lessor, who received it and put it into his purse, and afterwards discovering a counterfeit piece among the money, he refused to carry it away, and re-entered for the condition broken, the re-entry was held uot to be lawful, because he accepted the money at his peril. This case of Vane v. Studley is cited cautiously, and stated, as said to have been so adjudged. With regard to Meade’s case itself, it did not require the aid of any such decision, because no such question arose in that case, and it was adopted by Lord Coke merely in illustration of his opinion. Perhaps, the question arising upon the forfeiture of the condition, might have induced the judges the more readily to adopt the rule, though in Shepherd the rule is laid down as general, and without any special application.* These loose dicta, and this doubtful case of Vane v. Studley, are then, as far as I have been able to discover, all the authority which we have for this ancient doctrine ; and it is to be remarked, that we find no subsequent sanction of it, through all the accumulated decisions in the English law. On the contrary, the modern decisions are founded on different principles. They apply another and juster rule to cases of payment in negotiable paper. These cases are so very analagous to the one before us, that, it would be very difficult to raise a distinction.
In Stedman v. Gooch, (1 Esp. Cases, 3.) the plaintiff took in payment, for goods sold to the defendant, three promissory notes of one Finlay, payable at the house of [461] one Brown, and gave the defendant a receipt to that effect. It appeared that Finlay had no effects in the hands of Brown, and the plaintiff sued upon the original demand, before the notes were payable. Lord Kenyon held, and' his opinion was afterwards concurred in, by the other judges of the king’s bench, that if such a bill or note was of no value, the creditor might consider it as waste paper, and resort to his original demand. If the plaintiff’in that case was not bound by the acceptance of the promissory note of Finlay, because it proved afterwards to be of no value,vvhy should the defendant, in the present case* be bound by the acceptance of a pretended promissory note from the Boston Branch Bank, when the note proves, afterwards, to be counterfeit? Whether it be the promissory note of an individual, or of a corporation, can make no difference. The creditor, in both cases, is presumed to have been ignorant of the want of value in the note. He cannot be chargeable with negligence, in not detecting, in the first instance, the want of value, because, the means of ascertaining whether the note was or was not of valúe, may be, and probably were, equally in both cases, absent from the party. The like doctrine was advanced in the case of Owenson v. Morse, 7 Term, 64.) and it has been adopted and applied to a similar transaction of payment, in a negotiable note, in the case of Roget v. Merritt and Clapp, decided in this court, (2 Caines, 117.)
The negotiable note of a third person, and a bank note, are equally promissory notes, for the payment of money; arid if the receiver may be presumed in one case, and not in the other, to have taken upon him the risk of the solvency of the drawer, there is no presumption in either case, that he assumes upon himself the risk of forgery.— In'the case of Goldsmiths’ notes, which formerly were accounted as ready cash, lord Ch. J. Holt did, indeed, once say, (Tassel v. Lewis, 1 Lord Raym.743.) that the receiver gave credit to the goldsmith, and took them at his peril j jjUf; this doctrine has since been exploded by repeated decisions. (Str. 415. 508. 1248.) Even were we to admit, (which I do not,) that there might be some difficulty in surmounting the opinion of lord Colee, as to gold and silver coins, yet, as to bank bills and other promissory notes, we mast conclude, upon the strength of authority, as well as upon the reason and justice of the case, that the charge of the court below was correct, and that the judgment ought to be affirmed.
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Kent, Ch. J.
The justice of this ease is clearly with the defendant in error. He parted with his goods to the plaintiff, without .receiving the compensation which was intended. It would be matter of regret, if the law obliged us to regard a payment in counterfeit, instead of genuine bank bills, as a valid payment of a debt, merely because the creditor did not perceive and detect the false bills, at the time.of payment. The reasonable doctrine, and one which undoubtedly agrees with the common sense of mankind, is laid down by Paulus in the Digest; and has been incorporated into the French law. He says, that if a creditor receive by mistake any thing in payment, different from what is due, and upon the supposition that it was the thing actually due, as if he receives brass instead of gold, the debtor is not discharged, and the creditor, upon offering to return that which he received, may demand that which is due by the contract. Si quumcturum tibi promisissem, iili ignoranii quasi aurum ces soherim, non iberabor. (Dig. 46. 3. 50. Pothier, Traité, des Obligationes, No. 495.)
But there are some ancient dicta in the English law, which advance a contrary doctrine, in respect to gold and silver coin. It is said, that the creditor must at his peril count and examine the money at the time he receives it. Bank bills are not money, in the strictly legal and technical sense of the term, but as they circulate, and are received as money, in the ordinary transactions of business, it becomes material to examine into the authority and solidity of these positions in the books. In Shepherd’s Touchstone, (p. 140.) it is laid down, and with a reference to the Terms de Ley, that if a payment be made partly with counterfeit coin, and the party accept it, and put it up, it is a good payment. 'Shepherd’s Touchstone is supposed to be the work of Mr. Justice Dr.deridge, and as such, it has always been considered as a book of authority; but it loses some of its character for accuracy, when we [460] consider it as a posthumous and surreptitious publication. The book to which it refers, gives no increased weight to the dictum. The same doctrine is contained in Wade’s case; (5 Co. 114.) but it is supported only on the authority of the case of Vane v. Studley, which is there cited, in which it is said to have been adjudged, that where the lessor demanded rent of his lessee, according to the condition of re-entry, and the lessee paid the rent to the lessor, who received it and put it into his purse, and afterwards discovering a counterfeit piece among the money, he refused to carry it away, and re-entered for the condition broken, the re-entry was held uot to be lawful, because he accepted the money at his peril. This case of Vane v. Studley is cited cautiously, and stated, as said to have been so adjudged. With regard to Meade’s case itself, it did not require the aid of any such decision, because no such question arose in that case, and it was adopted by Lord Coke merely in illustration of his opinion. Perhaps, the question arising upon the forfeiture of the condition, might have induced the judges the more readily to adopt the rule, though in Shepherd the rule is laid down as general, and without any special application.* These loose dicta, and this doubtful case of Vane v. Studley, are then, as far as I have been able to discover, all the authority which we have for this ancient doctrine ; and it is to be remarked, that we find no subsequent sanction of it, through all the accumulated decisions in the English law. On the contrary, the modern decisions are founded on different principles. They apply another and juster rule to cases of payment in negotiable paper. These cases are so very analagous to the one before us, that, it would be very difficult to raise a distinction.
In Stedman v. Gooch, (1 Esp. Cases, 3.) the plaintiff took in payment, for goods sold to the defendant, three promissory notes of one Finlay, payable at the house of [461] one Brown, and gave the defendant a receipt to that effect. It appeared that Finlay had no effects in the hands of Brown, and the plaintiff sued upon the original demand, before the notes were payable. Lord Kenyon held, and' his opinion was afterwards concurred in, by the other judges of the king’s bench, that if such a bill or note was of no value, the creditor might consider it as waste paper, and resort to his original demand. If the plaintiff’in that case was not bound by the acceptance of the promissory note of Finlay, because it proved afterwards to be of no value,vvhy should the defendant, in the present case* be bound by the acceptance of a pretended promissory note from the Boston Branch Bank, when the note proves, afterwards, to be counterfeit? Whether it be the promissory note of an individual, or of a corporation, can make no difference. The creditor, in both cases, is presumed to have been ignorant of the want of value in the note. He cannot be chargeable with negligence, in not detecting, in the first instance, the want of value, because, the means of ascertaining whether the note was or was not of valúe, may be, and probably were, equally in both cases, absent from the party. The like doctrine was advanced in the case of Owenson v. Morse, 7 Term, 64.) and it has been adopted and applied to a similar transaction of payment, in a negotiable note, in the case of Roget v. Merritt and Clapp, decided in this court, (2 Caines, 117.)
The negotiable note of a third person, and a bank note, are equally promissory notes, for the payment of money; arid if the receiver may be presumed in one case, and not in the other, to have taken upon him the risk of the solvency of the drawer, there is no presumption in either case, that he assumes upon himself the risk of forgery.— In'the case of Goldsmiths’ notes, which formerly were accounted as ready cash, lord Ch. J. Holt did, indeed, once say, (Tassel v. Lewis, 1 Lord Raym.743.) that the receiver gave credit to the goldsmith, and took them at his peril j jjUf; this doctrine has since been exploded by repeated decisions. (Str. 415. 508. 1248.) Even were we to admit, (which I do not,) that there might be some difficulty in surmounting the opinion of lord Colee, as to gold and silver coins, yet, as to bank bills and other promissory notes, we mast conclude, upon the strength of authority, as well as upon the reason and justice of the case, that the charge of the court below was correct, and that the judgment ought to be affirmed.
I have not thought it requisite to pay much attention to the case of Price v. Neale, (3 Burrow, 1354.) which was cited in the argument, because, I consider that case as decided upon principles which have no application to the case before us. It was there held, to be incumbent upon the acceptor of a forged bill of exchange, to satisfy himself of the genuineness of the drawer’s hand, before he accepts and pays it, as he must be presumed to know his correspondent’s hand; and that it was not incumbent upon the defendant to inquire into that fact. That decision, therefore, turned upon the negligence imputable to the one party, and not to the other. No such imputation alises in the present case. The acceptance of a bill, and the indorsement of a note give a credit to the paper, which, upon commercial principles, the party is not afterwards at liberty to recall.
Judgment affirmed.