Bonnell v. Covington

delivered the opinion of the court.

This was an action of assumpsit brought by the plaintiff in error against the defendants upon a promissory note for five hundred and seventy-three dollars, “in the current notes of either of the banks of Natchez or of the Union Bank, for value received.” The defendants pleaded, that upon the day the note fell due they tendered its amount in the notes of the Mississippi Union Bank. To this plea there was a demurrer, which was overruled by the court below and final judgment given against the plaintiff. The note was ' dated 2d October, 1839, and was payable 1st January, 1841.

The principal objection to the plea is, that it does not aver that the notes which were tendered were current. It is a general rule that a plea should traverse all the material allegations of the declaration. The declaration in this case alleges a contract to pay in the current notes of certain banks; the plea in defence sets up an offer to pay in notes not asserted to be current. By the terms of the contract it is believed that the words current notes are applicable to the Union Bank as well as to the banks of Natchez; and that the plaintiff could not be compelled to receive the uncurrent issue of either. The plea is defective in omitting the allegation that the notes tendered were current.

There are other points made in the cause which it is not neces*327sary to decide. A single remark will be made upon one position, to prevent misapprehension. In determining that the plaintiff is entitled to the notes of the banks mentioned that were current on the day the note sued on became due, we do not decide that he was entitled to claim the amount in specie. If there was any difference between the current notes of those banks, if there were any such, and specie, it maybe estimated by the jury, and the defendants allowed the benefit of such difference. Their verdict must be for the value of the current notes in specie at the time payment should have been made. 2 Yerger, 448; 1 Litt. 30; 3 Mon. 8; Hardin, 509.

Judgment reversed and cause remanded.