Bank of Charlotte v. E. H. Britton

*366 RodmaN, J.

A demurrer for want of jurisdiction can be sustained only when the want of jurisdiction appears on the face of the complaint. Here the sum demanded exceeds $200. But the defendant argues that inasmuch as the claim is upon a note made in 1863, there is a presumption by virtue ot the Acts of 1866-’67, that the note was given upon a loan of Confederate money, and was payable in like currency, and there-i’ore the scale must be applied, which would reduce the demand to less than $200. This presumption however is not conclusive, it does not necessarily follow from the date of the note; it is open to the plaintiff to show by evidence that the consideration of the note was other than a loan of Confederate money, or that it was agreed to be paid in some other .money. - By the demurrer which assumes that the presumption is conclusive, the plaintiff'would be cut off from this proof and subjected to the scale in a case to which the statute may mot apply. It is true the plaintiff might avoid this unjust result, by setting out in his complaint the particular fact which exempted his demand from the scale, but we think he was not bound to do this. A plaintiff is never bound to anticipate a defence which perhaps may not be set up. The facts to authorize the application of the scale are matters of defence and must be pleaded as such where the note sued on does not as (as it does here) show prima facie that the scale is applicable to it, and where it does so show then the defendant must in some way claim the application of the scale. ¥e think the demurrer was properly overruled. The appeal is from -the interlucutary judgment overruling the demurrer, and consequently wo are not called to give final judgment.

This opinion will be certified to the Superior Court in ■order that it may proceed according to law.

PeR Cueiam' Judgment affirmed.