
    Booth and Bell against Comegys and Pershouse.
    
      June, 1824.
    
      1, Plea of tender of bank notes must be accompanied profert.
    2, Mattof cle-feasance need not ciaration. m a*
    IN Limestone Circuit Court defendants declared against plaintiffs in Error on their bond for $3070 89. Oyer craved ; and a joint bond of Brice.M. Garner and defendants set out concluding thus : “ This obligation may be “ discharged in good merchantable baled cotton delivered “ at said Garner's ferry landing in Limestone Cotrfity, at cash “ price, on or before 15th January, 1821, Henry Minor or “ Joshua Falconer being notified of the- delivery thereof. “ This obligation is collateral security for the payment of an “ execution from Madison Circuit Court, said Falconer and “ and Comegys against said Garner. Judgment at Septem- “ ber term, 1821 ; and whatever may be made on said exe- “ cution is to be credited thereon. Witness,” &c. Plea — that an execution upon'the judgment mentioned issued, on which was an endorsement pursuant to the Statute passed I4th day of June, 1821, that certain bank notes would be received in payment; and afterwards, and before the return day of the execution, on, &c. at &c. said Garner tendered andloffered to John M. Taylor, Esq. the attorney of said Falconer -and. Comegys, in payment and satisfaction thereof good bank iiotes, such as named in the endorsement, to the full amount 0f the judgment and the interest which had accrued ; but said attorney refused to receive the said bank notes, and de-fondants say they are now ready and willing to pay and discharge said judgment according to the tenor and effect of gajd endorsement, viz. the amount in bank notes as aforesaid tendered by said Garner, and pray that the same may be repeived.
    Defendants in the Courts below also plead payment. Issue on the last plea, general demurrer and joinder to the first. Demur*®* - sustained ; verdict and judgment for defendants in Error.
    
      Booth and Bell here assign that there was Error
    I, In sustaining the demurrer to the plea of tender.
    
      % That declaration was insufficient, there being no averment that the execution was not paid.
    
      Goalier, Kelly, and Hutcheson,'for plaintiffs in Error
    cited, 7 John. R. 476.
    
      John M. Taylor, for defendants
    6 Bac. Ab. 465. Tender R. 4.
   Judge Saffold

delivered the opinion of the Court.

Bank notes are portable, and could as conveniently as-other money have been brought into Court. The plea without the averment of profert in curia was bad on demurrer.

On the bond as described, a good cause of action is shewn, and prima facie, there was a right to recover. The condition shews a matter in defeasance, of which the defendants in the Court below (if they expected to sustain it by proof) should have availed themselves by plea.

Let the judgment be affirmed.

Judge Ellis having presided on the trial below, and Judge Minor .having been of Counsel, did not sit. 
      
      
        Mullins vs. Cabiness, ante, p. 28.
     