Nashville Bank v. Henderson

13 Tenn. 104

• Court: Tennessee Supreme Court
• Decided: March 15, 1833
• Status: Published

Opinion

Peck, J;

delivered the opinion of the court.

It is here objected that debt will not lie on several notes not under seal, under the amount of fifty dollars, in the county or circuit court; but that the suit should have been brought on the several notes before a justice of the peace.

This objection cannot be sustained; debt will lie for a sum certain. The writ may be for a certain sum, and the declaration may show how the debt is claimed. The sum is just as certain where it is demanded on twenty bank notes, as if demanded on one. The summons is for . , . ..... „ , , . , . . a sum withm the jurisdiction of the court to which it is made returnable, and the amplification of that summons by the declaration is consistent with it, and shows a good cause of action for the sum demanded.

The next objection on the record arises on the summons. If this were maintainable, it should be by plea in abatement, and not by demurrer. Not being pressed in argument, we pass to the next, to wit, that some of these notes were made payable at the branches of the Nashville Bank, and the declaration not showing that demand had been made at the proper place, the demurrer has been well taken to the whole declaration.

The declaration avers that these branches had been called in; demand could not be made, or if made could avail the bearer nothing. The bank at which demand was made, being the maker of the note, is prima facie liable, though the place of payment be different from the place where the note was made; and it were useless to call upon a fund for satisfaction, if that fund had been by the maker -withdrawn. To allow such a doctrine, would be to allow the bank to take advantage of her own wrong, andywould in fact be a fraud upon the holder of the notes payable at the branches. The principal bank could make all her notes payable elsewhere; and if the doctrine contended for be allowed, the most palpable fraud would be practised by withdrawing the branches and funds.

The averment is not-traversed; the demurrer admits all matters well pleaded. There was no way of obviating the difficulty produced by the act of the bank, but by such an averment; and the truth of it being confessed by the demurrer, the proper judgment has been rendered.

Judgment affirmed.