President v. King, 5 Ill. 199, 4 Scam. 199 (1843)

Dec. 1843 · Illinois Supreme Court

5 Ill. 199, 4 Scam. 199

The President, Directors, and Company of the Bank of Illinois v. Frederick King.

Appeal from Morgan.

i. Pleading — lender. Where a bank gave general notice to its depositors that it would pay its deposits only in its own notes, a plea to an action against it for nonpayment of a deposit, in current bank notes, which avers a tender of the notes of the bank, without alleging that they were current at the time óf the tender, is bad, on demurrer.

This cause was heard in the Morgan circuit court, at the October term, 1842, before the Hon. Samuel D. Lockwood, without the intervention of a jury, who rendered a judgment for the plaintiff for $850.50 damages and costs. The defendants -appealed to this court.'

J. J. Harden and D. A. Smith, for the appellants:

Wm. Brown and H. B. McClure, for the appellee.

Shields, Justice,

delivered the opinion of the court: [* 200] The declaration in assumpsit avers an undertaking on the part of the appellants to pay a certain sum in current bank notes. Two pleas were interposed; one averred a general notice to pay deposits in nothing but notes of the Bank of Illinois, and a tender of such notes. A demurrer was sustained to this plea. The other avers a tender of such notes, with the additional averment, that they were current at the time. Issue was joined on this plea, and judgment rendered against the appellants for $350.50 damages and costs. The decision of the court below in sustaining the demurrer to the first plea, is assigned for error. The plea is defective in not averring that the notes tendered were current at the time of tender. The general notice set forth in the plea does not change the nature of the special undertaking to pay in current notes. The demurrer was properly sustained.

The judgment below is affirmed with costs.

Judgment affirmed.