in opinion, refused to give; and the counsel for 1825. the plaintiffs excepted to the refusal. 2. The plaintiffs prayed the Court to instruct the jury, that if they believed the evidence so given, the plaintiffs were entitled to recover of the defendants the sum of 690 dollars, being the original value of the altered notes; which instruction the said Judges, being divided in opinion, did not give; to which refusal the said counsel for the plaintiffs excepted. 3. The plaintiffs prayed the Court to instruct the jury, that if they believed the evidence so given, the plaintiffs were entitled to recover of the defendants the whole sum of 6,900 dollars, being the balance so exhibited by their customer's book aforesaid, as due from the defendants to the plaintiffs, with legal interest thereon from the day of instituting their action aforesaid; which instruction the Judges aforesaid, being divided in opinion, refused to give; to which refusal the counsel for the plaintiffs excepted. Judgment being rendered upon this bill of exceptions, for the defendants in the Court below, the cause was brought, by writ of error, to this Court. It was insisted, on the part of the plaintiffs, that the judgment ought to be reversed, on the following grounds: 1. That what took place on the 25th of February, 1819, between the parties, was not only equivalent to payment, but was payment itself; and the defendants are, in all respects, to be con U. S. Bank V. Bank of 1825. sidered as if they were suing to recover back the U. S. Bank V. Bank of Georgia. March 14th. March 18th. money. 2. That if understood only as an acceptance, or agreement to pay, the principle would still be the same. 3. That, in either case, the plaintiffs were entitled to recover. The cause was argued by Mr. Sergeant, for the plaintiffs," and by Mr. Berrien, for the defendants." Mr. Justice STORY delivered the opinion of the Court. This is a case of great importance in a practical view, and has been very fully argued upon its merits. The Bank of Georgia having ori a He cited Bolton v. Richards, 6 Term Rep. 139. The Manhattan Company v. Lidig, 4 Johns. Rep. 377. Levy v. Bank of United States, 4 Dall. Rep. 234. S. C. 1 Binn. Rep. 27. Chitty on Bills, 483. Smith v. Chester, 1 Term Rep. 655. Bass v. Clive, 4 Maul. & Selw. 15. Master v. Miller, 4 Term Rep. 320. Barber v. Gignell, 3 Esp. N. P. 60. Jordain v. Lashbrook, 7 Term Rep. 604. Price v. Neal, 3 Burr. Rep. 1354. Jones v. Ryde, 5 Taunt. Rep. 488. Markle v. Hatfield, 2 Johns. Rep. 462. Gloucester Bank v. Salem Bank, 17 Mass. Rep. 33. Smith v. Mercer, 6 Taunt. Rep. 76. Meade v. Young, 4 Term Rep. 28. Jenys v. Fowler, 2 Str. Rep. 946. b He cited Gates v. Winslow, 1 Mass. Rep. 66. Meade v. Young, 4 Term Rep. 28. Kyd on Bills, 202, 203. Lambert v. Oakes, 1 Lord Raym. 443. Union Bank v. Bank U. S. 3 Mass. Rep. 74. 1 Johns. Cas. 145. 5 Johns. Rep. 68. 2 Term Rep. 366. Buller v. Harrison, Cowp. Rep. 565. Miller v. Race, 1 Burr. Rep. 457.. 2 Evans' Pothier, 19. 495. Toby v. Barber, 5 Johns. Rep. 72. V. Bank of ginally issued the bank notes in question, they 1825. were, in the course of circulation, fraudulently U. S. Bauk altered, and having found their way into the Bank of the United States, the latter presented them to the former, who received them as genuine, and placed them to the general account of the Bank of the United States, as cash, by way of general deposit. The forgery was not discovered until nineteen days afterwards, upon which, notice was duly given, and a tender of the notes was made to the Bank of the United States, and by them refused. Both parties are equally innocent of the fraud, and it is not disputed, that the Bank of the United States were holders, bona fide, for a valuable consideration. Under these circumstances, the question arises, which of the parties is to bear the loss, or, in other words, whether the plaintiffs are entitled to recover, in this action, the amount of this deposit. action. Some observations have been made as to the The form of form of the action, the declaration embracing counts for the balance of an account stated, as well as for money had and received, &c. But, if the plaintiffs are entitled to recover at all, we see no objection to a recovery upon either of these counts. The sum sued for is the balance due upon the general account of the parties, and it is money had and received to the use of the plaintiffs, if the transaction entitled the plaintiffs to consider the deposit as money. It is, clearly, not the case of a special deposit, where the identical thing was to be restored by the defendants; the notes were paid as money upon general ac V. Bank of 1825. count, and deposited as such; so that, according U. S. Bank to the course of business, and the understanding of the parties, the identical notes were not to be restored, but an equal amount in cash. They passed, therefore, into the general funds of the Bank of Georgia, and became the property of the bank. The action has, therefore, assumed the proper shape, and if it is maintainable upon the merits, there is no difficulty in point of form. In general, a We may lay out of the case, at once, all consideforged paper ration of the point, how far the defendants would but this does have been liable, if these notes had been the payment in is not good; not apply to a made, bona in its notes. Own payment notes of any other bank, deposited by the plainfide, to a bank tiff, in the Bank of Georgia, as cash. That might depend upon a variety of considerations, such as the usages of banks, and the implied contract resulting from their usual dealings with their customers, and upon the general principles of law applicable to cases of this nature. The modern authorities certainly do, in a strong manner, assert, that a payment received in forged paper, or in any base coin, is not good; and that if there be no negligence in the party, he may recover back the consideration paid for them, or sue upon his original demand. To this effect are the authorities cited at the bar, and particularly Markle v. Hatfield, (2 Johns. Rep. 455.) Young v. Adams, (6 Mass. Rep. 182.) and Jones v. Ryde, (5 Taunt. Rep. 488.) But, without entering upon any examination of this doctrine, it is sufficient to say, that the present is not such a case. The notes in question were not the notes of another bank, or the security of a third person, but they were received and adopted by the bank as its own genuine notes, in the most absolute and unconditional manner. They were treated as cash, and carried to the credit of the plaintiff in the same manner, and with the same general intent, as if they had been genuine notes or coin. Many considerations of public convenience and policy would authorize a distinction between cases where a bank receives forged notes pur porting to be its own, and those where it receives the notes of other banks in payment, or upon general deposit. It has the benefit of circulating its own notes as currency, and commanding thereby the public confidence. It is bound to know its own paper, and provide for its payment, and must be presumed to use all reasonable means, by private marks and otherwise, to secure itself against forgeries and impositions. In point of fact, it is well known, that every bank is in the habit of using secret marks, and peculiar characters, for this purpose, and of keeping a regular register of all the notes it issues, so as to guide its own discretion as to its discounts and circulation, and to enable it to detect frauds. Its own security, not less than that of the public, requires such precautions. Under such circumstances, the receipt by a bank of forged notes, purporting to be its own, must be deemed an adoption of them. It has the means of knowing if they are genuine; if these means are not employed, it is certainly evidence of a neglect of that duty, which the public have a right to require. And in respect to persons 1825. U. S. Bank V. Bank of |