Nashville union and American. [volume] (Nashville, Tenn.) 1868-1875, 1870-12-14
NASHVILLE WEDNESDAY, DECEMBER

l cnIltles TOT the prOSecutlOn OF lne ap-
peal. He charges that the judgment
was rendered upon note or due bill exc
cuted by himself under the following cir
cumstances. In January, 1862. he bought
of said Mary Graft, a check ON the Bank
of Lynchburg for $3.50, or 1886, in Con-
federate money, and after he had paid
her for 1t in full, (partly liz a debt she
owed him, she requested him as friend,
and as matter of accommodation, to
take back and keep for her, as a deposit,
$240 of the money. To this he consent
ed, and executed the due bill, which was
intelded merely as receipt, or evidence
of deposit-but by mistake, or igno-
rance, it was executed as implying an in
debtejness. That this due bill was SUBJ
sequently credited with $40, the price of
a COW he had sold TO her. That he had
twice offered her the mopey before she
sued, but she refused to receive it. Upon
these grounds he praysa perpetual lnjunc-
ton.
There was no demurrer to this bill, ex-
cept in the answer, the respondent says,
''She is advised and will insist that the
complainant's "bill is demurrable, be-
cause the question submitted in it is one in
which a court of law had Jurisdiction
and that this Honorable Court has no ju-
risdiction after fair trial at law" and
then proceeds with the answer: This
cannot be regarded as a demurrer to the
jurisdiction of the court. A demurrer
upon this ground must be demurrer
proper, and not demurrer embodied in
the answer. Under section 1919 of the
Code, a defendant may rely upon matters
of demurrer in his answer, but this does
not apply to demurrer TO the Jurisdictions
Bennett vs.. Williams and Gordon, 5 Cold.
24O. Whether or not the true ground for
a demurrer presented in this bill, was the
want of jurisdiction in the court, or that
from the face of the bill it appeared that
the question had been adiudicated at
law, we will not determine, but will see
whether the complainant is emit
tied to any relief upon the merits of his
case. Was the transaction, intended to
create a debt or obligation to pay, upon
the part of the complainant, or was it a
mere deposit as he alleges? In the first
place the note or due bill which must be
regarded as the highest evidence of the
contract, decides this question against the
complainant. 1t is an obligation to pay
$4,000, in currency On demand, and
this is strengthened by the fact that this
due bill was written by the complainant
himself and he is shown to be man of
fair business capacity. Again, the COM
plainant in his bill omits very important
allegation, in order to make a case of
special deposit, as he insists, although he
charges that he still has the money; he
does not charge that he kept the same as
special deposit, separate from his own
funds; nor does he bring the same into
court with his bill. This would have gone
far to strengthen his case, notwithstand.
ing the fact that at the time this bill was
filed, Confederate notes were worthless.
The answer denies the case made.by the
bill, and insists that the due bill was
given for the balance due her on the
check, and ere ated debt or obligation on
the complainant 10 pay the same on de-
mand in currency. The proof does no
more than to show, that the complainant
took the Confederate money back, after
he had pad it to defendant at her request,
to keep for her, she saying she was afraid of
being robbed. This snotinconsistent with
the position assumed by the defendant;
that he kept it as loan, and does not
make out the compliments case. The
fact stated in the bill, that the complain
ant twice offered to pay the Confederate
money and was refused, goes rather to
weaken than strengthen cOmplainant's
case. 1t is next argued, that complainant
should be relieved, upon the ground that
the consideration of the due bill was
Confederate money. Complainant bought
the check of the defendant and paid her
Confederate money, but Immediately at
the request and as q part of the same
transaction, took back $240, of the same
Confederate money and gave her due
bill for the amount. 1t might very fairly
be assumed that the consideration of the
due bill, was the balance of $240, due on
the check, which is not shown 20 have
been for Confederate money. If it should
be question of doubt, the law would
imply that the contract was founded upon
the legal, rather than the illegal consider
alton; but this question is not important
now, for under the decision made at the
present term, this under the facts in the
case would be no defence if clearly proved.
Affirm the decree.
r. MCFARLAND, Special Judge.
A true copy.
Test: J. f. DEADERICK, Clerk.