Nashville union and American. [volume] (Nashville, Tenn.) 1853-1862, 1859-10-08
Decisions OF THE sUrHEmE cOunr.
oPRYCIAL.
Optntons Of the Supreme COurt OF the
state ot Tenaessse, at jackson, April
Terms 1859.


Term, 1859.
g. g. Ware vs.. Jas. A. street & Co
Street &Co. commenced snit by warrant before
Justice OF the Peace against Ware on an account
or StyI00. for merchandise. The only controversy
was upon payment Of $4,000 upon the 18th of july
1893 Iiils Is not disputed, hut il IS insisted that it
should not have been allowed, because the pavment
was made in notes upon the Citizens' Bank. WHICH
suspended on the next day, and the notes became
worthless
The proof is not sufficient to fix upon Ware anv
knowledge that the Bank broke. or that il had
suspended, or was about to suspend He lived for
ty miles from Memphis, and it is probable that
he knew IS much about the condition Of the Banks
the plaintiffs. who are merchants in that ctv The
facts relied upon te fasten knowledge upon him. are
not at all sufficient for that purpose; and 50 the
question Of fraud is ont Of the case.
The proof shows that the Bank did business on
that day, TO the close and did not suspend until the
next day. Il seems by the evidence OF the Clerk
that it resolved upon that evening but not made
known. The payment IN question was made by the
agent and sOn-iIrlaw Of the dcfendent late in the
evening of the l2th and receipt taken The plain
tifEs made demand at the Bsnk in Memphis next day
and notified the defendant hat the payment should
not stand, and the credit was cancelled upon the
books. The notes We're rendered in a few days 10
the defendant and no refused to receive them, but
insisted upon the credit.
The loss must fall upon one of two innocent men,
and the law must control it. At the time the pay
ment was made the notes were circulating as cur
reney, and considered good by the community. But
they We're, in fact, Of no value, at the hour they
were paid ont, although few hours before they
were convertible into specie.
A payment in genuine bank notes. supposed by
both parties to be good. though in fact worthless
viii be binding and the loss fall upon the re-
eelVeF in the absence Of fraud 1t is otherwise Kf
the not genuine-not what they purp0rt 80 be--so.
payment IN forged or counterfeit paper would be
void, and have no effect as credit or payment for
property or preexiSting debts.
But, it is contended, that by the same case, pay
ment good under the above rule, may be avoided,
by presenting them 20 the Bank where they pay
able and refusal 70 pay with notice to the person
from whom they were received But even if that
were the law, the Court erred in relation to the
proper plan for the demand The notes were pay
able at the branch of the Citizens Bank. Knox
vile, but they presented at the principal Bank
at Memphis. The charge made this sufficient and
that fatal To the defendant BY avoiding the pay
ment To this the defendant excepts, error. We
have heretofore held in a recent reported case
that where demand for any purpose is necessary,
1t must be made at the place where the notes. upon
their face are made payable. So there was no
legal demand here and the payment was binding
upon the parties, on the principle first stated.
This is decisive OF the case, and other objections
might not be noticed. But another error exists ia
the charge equally fatal to the case and is one of
practical Importance, and perhaps. ought to be
decided it fairly arises. That is to the effect
of a payment made in bank-nOtes, under the cir
cumstances stated His Honor in his charge
adopted the srbier dictRm of the Court, in the
of Suggs vs. GOss,.s Ter. Hj, and placed pas ment
in bank-n0tes, upon the same ground as ordinary
prOmissory notes bills that recourse could be
had upon them, or the payment avoided in OF
presentation, and refusal to pay, &c.
We think such is not the law; but that asspaymert
without fraud, in sbank-notes, circulating and
ceiycd as money, cannot be avoided BY demand
fgsal and notice, or tender to the payer