Upon a plea of payment, the defendant may prove a discharge in bank-notes, nego tiable notes of individuals, or a debt already due from the payee, delivered and accepted or discounted as payment ; Phil. Ev. Cowell & H. ed: n. 387. Bank-notes, in conformity to usage and common understanding, are re garded as cash; 1 Burr. 452; Keith v. Jones, 9 Johns. (N. Y.) 120; Foley v. Mason, 6 Md. 37; unless objected to ; Wheeler v.
Kuaggs, 8 Ohio 169 ; 2 Cr. & J. 16, n.; Sea- I well v. Henry, 6 Ala. 226. Treasury notes are not cash ; Foquet v. Hoadley, 3 Conn. 534. Giving a check is not considered as payment; the holder may treat it as a nul lity if he derives no benefit from it, provided he has not been guilty of negligence so as to cause injury to the drawer; 4 Ad. & E. 952; People v. Howell, 4 Johns. (N. Y.) 296; Barnet Smith, 30 N. 'H. 256, 64 Am. Dec. 290; Comptoir D'Escompte de Paris v. Dres bach, 78 Cal. 15, 20 Pac. 28. See National Park Bank v. Levy, 17 R. I. 746, 24 Atl. 777, 19 L. R. A. 475 ; Good v. Singleton, 39 Minn. 340, 40 N. W. 359 ; Tiddy v. Harris, 101 N. C. 589, 8 S. E. 227; Barton v. Hunter, 59 Mo. App. 610. But see Downey v. Hicks; 14 How. (U. S.) 240, 14 L. Ed. 404. Giving a check is a conditional payment, and the debt is discharged only when the check is paid, unless it was agreed that the check should be received in satisfaction of the debt; Greenwich Ins. Co. v. Imp. Co., 76 Hun 194, 27 N. Y. Supp. 794.
Payment in forged bills is generally a nullity, both in England and this country; Bank of U. S. v. Bank of Georgia, 10 Wheat. (U. S.) 333, 6 L. Ed. 334; Markle v. Hat field, 2 Johns. (N. Y.) 455, 3 Am. Dec. 446 ; Keene v. Thompson, 4 Gill & J. (Md.) 463; Simms v. Clark, 11 Ill. 137 ; Ramsdale v. Horton, 3 Pa. 330 ; Eagle Bank v Smith, 5 Conn. 71, 13 Am. Dec. 37. So also of coun terfeit coin; but an agreement to sell goods and accept specific money is good, and pay ment in these coins is valid even though they be counterfeit; 1 Term 225 ; Curcier v. Pennock, 14 S. & R. (Pa.) 51. The forged notes must be returned in a reasonable time, to throw the loss upon the debtor , Pindall's Ex'rs v. Bank, 7 Leigh (Va.) 617; Simms v. Clark, 11 Ill. 137. Payment to a bank in its own notes which are received and after wards discovered to be forged is a good pay ment; 2 Parsons, Contr. *622, n. A forged
check received as cash and passed to the credit of the customer is good payment; Levy v. Bank', 4 Dall. (U. S.) 234, 1 L. Ed. 814; Bank of St. Albans v. Bank, 10 Vt. 141, 33 Am. Dec. 188. Payment in bills of an in solvent bank, where both parties were inno cent, has been held no payment ; 7 Term 64; Ontario Bank v. Lightbody, 13 Wend. (N. Y.) 101, 27 Am. Dec. 179; Pool v. Hath away, 22 Me. 85. On the other hand, it has been held good payment in Bayard v. Shunk, 1 W. & S. (Pa.) 92, 37 Am. Dec. 441; Young v. Adams, 6 Mass. 185; Scruggs v. Gass, 8 Yerg. (Tenn.) 175, 29 Am. Dec. 114. See Richmond v. Irons, 121 U. S. 27, 7 Sup. Ct. 788, 30 L. Ed. 864. The point is still un settled, and it is said to be a question of intention rather than of law ; Story, Pr. Notes 125*, 477*, 641. The payment of bonds, secured by a mortgage, made in Con federate money during the Civil War is held to have been received in good. faith, and if accepted and acquiesced in for a long time, a court of equity will not interfere; Wash ington v. Opie, 145 U. S. 214, 12 Sup. Ct. 822, 36 L. Ed. 680.
If a bill of exchange or promissory note be given to a creditor and accepted as pay ment, it shall be a good payment ; Benj. Sales 726; Corn. Dig. Merchant (F) ; Coburn v. Odell, 30 N. H. 540; Mooring v. Ins. Co., 27 Ala. 254; Viser v. Bertrand, 14 Ark. 2C7_; Bangor v. Warren, 34 Me. 324, 56 Am. Dec. 657. But regularly a bill of exchange or note given to a creditor shall not be a dis charge of the debt till payment of the bill, unless so accepted; 1 Salk. 124.
If the debtor gives his own promissory note, it is held generally not to be payment, unless it be shown that it was so intended ; Peter v. Beverly, 10 Pet. (U. S.) 567, 9 L. Ed. 522; Smith v. Smith, 27 N. H. 244; Burdick v. Green, 15 Johns. (N. Y.) 247; 26 E. L. & E. 56.
If payment be made in the note of a fac tor or agent employed to purchase goods, or intrusted with the money to be paid for them, if the note be received as payment, it will be good in favor of the principal ; 1 B. & Ald. 14 ; 7 B. & C. 17; but not if received conditionally; and this is a question of fact for the jury ; Corlies v. Cumming, 6 COw. (N. Y.) 181.