I concur in the opinion that in the absence of all stipulation between the parties, the law does not, of itself, imply a warranty of the value of bank notes payable to bearer, and passing by delivery.

But it is, nevertheless, competent to the parties, to contract for a warranty of the value of such notes; and such express warranty may be as well inferred from circumstances, as proved by the most positive and direct testimony.

I am, farther, of opinion that, upon the proofs set forth in the second bill of exceptions, the assurances made by the appellant that the notes of the Mechanics Bank of Baltimore could be exchanged in Fredericksburg for notes of the Bank of Virginia, and that they would answer the appellee’s purpose of making his payment into the treasury, as well as notes of the Bank of Virginia, did, in point of law, constitute an express warranty that they were of equal value with the notes of the Bank of Virginia.

I am, therefore, of opinion, that the court below rightly refused the instruction moved for by the appellant, and stated in the second bill of exceptions; and that it also rightly refused to grant a new trial. I think, therefore, that the judgment ought to be affirmed. But the other judges being of a different opinion, the judgment is to be reversed, and the cause remanded for a new trial.