Bradley v. M'Clellan , 11 Tenn. 301 ( 1832 )

Peck, J.

delivered the opinion of the court.

The only question necessary for this court to determine, is that arising upon the demurrer.

It is argued at the har, that the paper declared on is not a hill of exchange, and that consequently the first count cannot be supported. Secondly, that it is not an order within the meaning of the act of 1762, ch> 9, sec. 4, and that if it were, no action can he maintained upon it, without averring the consideration of the acceptance.

Without giving any opinion upon the first count of the declaration, the second sets out a consideration moving the making of the order by the Estells in favor of the plaintiff, and a promise in writing on the part of the defendant to pay the $5000, and whatever might he due at the maturity of the draft or order.

This is declaring in legal form on a contract the parties could well make; it sets out a cause of action certainly good for the sum specified in the draft, and therefore, containing as it does, the usual causes of complaint in legal form to maintain an action, it should have been answered issuahly.

Our act of 1762, ch. 9, intended no more than to simplify the evidence to he offered. Where an order was drawn, it fixed the presumption of a debt; and an acceptance or promise to pay, like-every legal undertaking, must he enforced.

The drawing of the order in favor of the plaintiff is prima facie, evidence of a debt due from the drawers to the plaintiff; and the acceptance and promise to pay, is in like manner prima facie evidence of so much due from the acceptor to the drawer.

The judgment of the circuit court must he reversed, and the demurrer to the second count overruled; the cause must he remanded to the circuit court, and a writ of enquiry awarded, &c.

Judgment reversed.