
    Nashville Bank vs. Henderson.
    Debt will lie on several notes not under seal, each being under the amount of fifty dollars, but the whole being above that sum, in the county or circuit court.
    An objection to the nature and form of a writ or process, must be by plea of abatement, and cannot be looked to upon a demurrer.
    When notes have been issued payable at a branch of the principal bank, which has been called in by the principal bank, a demand of the money made of the principal bank, will entitle the party to sue the bank upon the non-payment of the notes.
    Henderson sued the Nashville Bank for the sum of $160, and declared in debt on sundry notes issued'by that corporation, none of which exceeded the sum of twenty dollars. They were all payable to bearer. Demand had been made by Henderson, as bearer, at the principal bank, though some of the notes were made payable at branches of that bank. The declaration averred that those branches had been called in by the principal bank, by reason whereof demand at the branches could not be made, and that said bank had assumed and was liable to pay. Breach, that the bank had not paid.
    To this declaration there was a special demurrer. Judgment was given for Henderson.
    
      Geo. S. Ycrger and Thompson, for plaintiff in error.
    Washington, for defendant in error.
    As to the third cause of demurrer, to wit, that the summons was not served five days before the return day, it is untrue in point of fact. And so, also, is the fifth cause of demurrer, which alleges a variance between the notes and declaration.
    As to the fourth cause of demurrer, namely, that the proper process to bring in the bond was not resorted to, but that it should have been on summons and distringuas, that cause is-also untrue in point of fact, for the process here, is a mere summons. Besides, the bank appeared by virtue of that process, and did not plead m abatement, , . , . , & . , . ,. T which waived the irregularity of the process, it any existed.
    The second cause of demurrer, is to the form of the action; alleging, that it should have been case, and not debt. Debt will lie. See Bullard vs. Bell, 1 Mason, 243: 2 Wheaton, 385.
    The first cause of demurrer is, that a number of small notes, each of which is under the jurisdiction of the county court, but all of which together are above it, cannot be united and made the foundation of a suit in that court, Bullard vs. Bell, 1 Mason, 243.
    The seventh cause of demurrer alleges that the declaration is double, in this, that there is but one count, and that that includes several bank notes. The counts are distinct, upon each note. If they were not, it is competent to join them, as the plea of the general issue would let in any defence against any particular note, although not applicable to the rest.
    As to the sixth cause of demurrer, to wit, that there was no demand made at the branches where some of the notes were payable, there is a good excuse alleged, namely, that they had been called in, and that the mother bank had undertaken to pay them. If non-performance of the terms of a contract, is occasioned by the act of one of the parties, the other is excused.
   Peck, J;

delivered the opinion of the court.

It is here objected that debt will not lie on several notes not under seal, under the amount of fifty dollars, in the county or circuit court; but that the suit should have been brought on the several notes before a justice of the peace.

This objection cannot be sustained; debt will lie for a sum certain. The writ may be for a certain sum, and the declaration may show how the debt is claimed. The sum is just as certain where it is demanded on twenty bank notes, as if demanded on one. The summons is for . , . ..... „ , , . , . . a sum withm the jurisdiction of the court to which it is made returnable, and the amplification of that summons by the declaration is consistent with it, and shows a good cause of action for the sum demanded.

The next objection on the record arises on the summons. If this were maintainable, it should be by plea in abatement, and not by demurrer. Not being pressed in argument, we pass to the next, to wit, that some of these notes were made payable at the branches of the Nashville Bank, and the declaration not showing that demand had been made at the proper place, the demurrer has been well taken to the whole declaration.

The declaration avers that these branches had been called in; demand could not be made, or if made could avail the bearer nothing. The bank at which demand was made, being the maker of the note, is prima facie liable, though the place of payment be different from the place where the note was made; and it were useless to call upon a fund for satisfaction, if that fund had been by the maker -withdrawn. To allow such a doctrine, would be to allow the bank to take advantage of her own wrong, andywould in fact be a fraud upon the holder of the notes payable at the branches. The principal bank could make all her notes payable elsewhere; and if the doctrine contended for be allowed, the most palpable fraud would be practised by withdrawing the branches and funds.

The averment is not-traversed; the demurrer admits all matters well pleaded. There was no way of obviating the difficulty produced by the act of the bank, but by such an averment; and the truth of it being confessed by the demurrer, the proper judgment has been rendered.

Judgment affirmed.  