
    W. L. Lanier et al. vs. John Trigg et al.
    L. being sued on a bond due in May, 1840, which was payable in the notes of a particular bank, plead that on the 16th of November, 1840, he tendered the amount in bills of the bank to the plaintiff, and that he brought the sum due with interest in the notes of that bank into court, ready to be paid to the plaintiff: Held, on demurrer that the plea was bad.
    In an action on a bond payable in the notes of a particular bank, the measure of damages is the value of the article at the time of the breach, not its value at any subsequent period.
    A plea of tender must aver a continual state of readiness to pay the sum due since the tender ; for although the defendant under such averment may not be able to show its truth, yet its introduction enables the plaintiff to show, if the fact be so, that upon a subsequent demand, the defendant had failed to pay, which would defeat the defence.
    Where a bond was payable on its face to B. it seems it is a matter of doubt whether it would be admissible in a court of law, to prove that the obligation did not originally belong to B. but to a bank.
    Where a note is payable or belongs to a bank, and has been assigned by such bank since the act of 1840, prohibiting assignments by banks of their notes and other evidences of debt, in an action upon such assigned note, the only mode of the defendant’s availing himself of the defence is by plea in abatement.
    T. & R. being assignees of a note payable to B. sued the makers thereon, at law; the defendants plead payment and a special plea of tender, the substance of which plea was, that though the note was payable to B. on its face, yet it • was in reality the property of the Hernando Bank when made, and was by agreement to be paid in the notes of the bank, which notes for the sum due they had tendered, six months after the maturity of the note to the assignees. A demurrer to the plea of tender having been sustained and a trial had upon the plea of payment, and verdict and judgment rendered for the assignees for the amount of the note; the defendants, on writ of error to this court, insist upon their right to. pay the-judgment in the notes of the bank by whom the note was thus assigned : Held, that the defendants be-below having permitted the suit there to be conducted by the plaintiffs as assignees of B. without question of their character in that particular by proper plea, had admitted their right to sustain their suit in that character, and it could not now be questioned.
    In error from the Marshall circuit court; Hon. Stephen Adams, judge.
    John Trigg and John K.Chester as assignees of William II. Bayliss sued William L. Lanier and Ransom H. Byrn upon the following bond:
    “ $500. Holly Springs, 23d Jan’y. 1840.
    Four months afterdate we or either of us promise to pay W. H. Bayliss, or order, five hundred dollars, value received, with interest from date.
    Witness our hands and seals.
    W. L. Lanier, [l. s.]
    R. H. Byrn, [l. s.] ’•’
    On the note was the following indorsements, viz.:
    
      “ For value received I assign the within note to Trigg & Chester, this 13th of May, 1840. W. H. Bayliss.
    Received on the within note three hundred dollars this 16th November, 1840. T. & C.”
    The declaration was in debt; the breach the non-payment of the money.
    The pleas filed were two; 1. The ordinary plea of payment before action brought. 2. The following special plea.
    
      “Actio non, because they say that the said writing obligatory in the plaintiff’s declaration mentioned was executed and delivered to the said W. H. Bayliss, for and in consideration of the sum of five hundred dollars, in bills made and issued by the Hernando Railroad and Banking Company, and payable by said company to the bearer thereof, and for no other or different consideration, and the said defendants further say that said bills were delivered over to them by the said W. H. Bayliss at the time said writing obligatory was executed, as the agent or trustee of said company, he being one of the directors and managers of the affairs of said company, and so represented himself to defendants, and the said writing was made payable to him, said W. H. Bayliss, in confidence of his said representations that he was such agent, and in consideration of the bills or notes of said company paid over to said defendants by said W. H. Bayliss as aforesaid, and the said defendants aver that said Bayliss assured said defendants at the time they executed and delivered said writing, and as an inducement to them to make said writing payable as aforesaid, that payment of the same might and should be made in the bills or notes of said company, and the defendants say that at the time when the said sum of money became due and payable from the said defendants to the said W. H. Bayliss, they were, and from thence hitherto have been and still are ready to pay to the said W. H. Bayliss or to the said Trigg & Chester, his assignees and the plaintiffs in this action, the said sum of five hundred dollars, in the notes of said company, with all interest due therefor, at, to wit, in the county aforesaid; and after the time when said sum of money became due and payable, and before the commencement of this suit, to wit, on the 16th day of November, 1840, said defendants were ready and willing, and then and there tendered and offered to pay to said plaintiffs the said sum of money, and all interest, in the bills of the said Hernando Railroad and Banking Company, to receive which of said defendants, said plaintiffs then and there wholly refused, and said defendants now bring said sum of money, with all interest due thereon, into court, here ready to be paid to said plaintiffs if they will receive the samé, and this they are ready to verify, wherefore they pray judgment, &c.”
    Upon the first of these pleas the plaintiffs tendered issue to the county; to the second they demurred. The court below sustained the demurrer, and the defendants refusing to plead further, a jury was empaneled on the issue, who found a verdict for the plaintiffs for $294,66; and the defendants prosecuted this writ of error.
    
      J. F. Trotter, for plaintiff in error.
    1. The agreement of Bayliss to receive the notes of the bank in payment of the bond, though void at common law, is good and binding under our statute, approved February 21, 1840, the seventh section of which makes it unlawful for any bank to assign its notes; the assignment, therefore, by Bayliss was absolutely void, being in violation of the statute ; the suit should therefore have abated. 1 Phil. Ev. 482; 15 Mass. Rep. 85; 1 Johns. Oh. R. 370; 1 Yesey, 128; 1 Phil. 497; King v. Laindor, 8 Term R. 379; 14 Yesey; Barker v. Prentiss, 6 Mass. R. 431.
    2. The assignment being void, the right to the note was still in the bank, whose agent Bayliss was, and therefore the plea of tender was good, because, being the property of the bank, under the statute the defendants have a right to pay in the notes of the bank, even after judgment.
    
      Lucas and Clapp, for defendants in error.
    The counsel for defendants in error contend that the demurrer was properly sustained in the courtbelow to defendant’s pleas,
    1. The note sued on could only be attacked by showing that a mistake was made in drawing it, or that there was fraud either in procuring it to be executed or in framing it differently from what was intended. But it could not be shown that the contract was otherwise merely as that the sum expressed to be paid in dollars was to be paid in bank notes. 1 Pirt. Dig. 395, sec. 208 ; 4 Phil. Ev. Notes, 1460, and references.
    2. The frame of the plea of tender was bad. It should have stated that he was ready at the time, and always afterwards, is yet ready, and brings the money into court. The reasons of this form of plea are too obvious, both on principle and authority, to require examination. The effect is to make the specific bank notes tendered ours. Shall he then, by an ingenious evasion of the terms, use the notes, and speculate upon their depreciation or appreciation, as the case may be, and bring them in at the trial worthless'for our acceptance? 5 Yerg. R. 414; Peck’s Tenn. R. 212.
    3. The pleas were bad for duplicity.
   Mr. Justice Clayton

delivered the opinion of the court.

This was an action of covenant upon a sealed instrument, by which the defendants below, the now plaintiffs in error, promised to pay four months afterdate to William H. Bayliss, or order, five hundred dollars, with interest from date.” It was assigned by Bayliss to Trigg & Chester.

The defendants, besides the plea of payment, filed a special plea, in which it was averred, that the said instrument, though made payable to Bayliss upon its face, was in reality due to the Hernando Bank, and was by agreement to be paid in the bills of said bank, and that on the 16th of November, 1840, they tendered the amount in bills of said bank to the plaintiffs, and that the defendants bring said sum and all interest into court, ready to be paid to said plaintiffs.

A demurrer was filed to this plea. Among the causes assigned were the following: “ That the plea does not aver that the defendants were always ready to pay the said bills from the time of the tender,” and “that it does not aver the tender was made on the day of the maturity of said instrument.” It became due in May, 1840.

Both these objections to the plea are good. The plea must aver a continual state of readiness to pay, or it is bad upon demurrer. Peck. R. 212: 5 Yerg. 414. Although the defendant under such averment may not be able to show its truth, yet its introduction enables the plaintiff to show, if the fact be so, that upon a subsequent demand, the defendant had failed to pay, which would defeat the defence. 5 Yerg. R.

The plaintiffs were entitled to the Hernando Bank bills, taking the plea to be true, on the day the obligation became payable. The same nominal amount six months afterwards, in such bills, might be of much less value. In an action of covenant of this kind, the measure of damages must be the value of the article at the time of the breach, not its value six months afterwards. The rights of the parties become fixed on that day. The demurrer was therefore properly sustained. Gordon v. Parker, 2 S. & M. 495.

It is said, in argument, that though this might be true at common law, yet that the act of 1840 forbids assignments by banks, and permits payment of debts due to banks to be made under all circumstances in their own issues, and that this varies the common law rule. It may be a matter of much doubt, whether it would be admissible in a court of law, to prove that the obligation did not originally belong to Bayliss, but to the bank. See Fox v. Horah, 1 Ired. Eq. R.; and Wilson v. Spencer, 1 Rand. But even if this could be done, the statute directs that after assignment the suit shall abate upon the plea of the defendant. This court has decided that the proper mode to make the defence is by plea in abatement. Planters Bank v. Sharp, 4 S. & M. 17. The parties, therefore, by permitting the suit to be conducted by the plaintiffs as assignees of Bayliss, without question of their character in this particular by proper plea, have admitted their .right to sustain the suit in that character. As this was not controverted in the proper mode, it cannot now be reached.

There is no bill of exceptions in the cause, nor was any charge asked of the court, nor any request of leave to amend.

The judgment is affirmed.  