Flewellin v. Hale

14 Tenn. 515

Opinion

Peck, J.

delivered the opinion of the court.

The act of assembly of 1817, ch. 16, sec. 1, has received our consideration, and is decisive of this case. The circumstance of Flewellen taking a covenant on Hale does not prevent him from inquiring into the consideration for which the note sued on had been given. If Flewellen is content to put an end to all controversy, by resisting the recovery on the note simply, why compel a suit on the covenant. True, Flewellin might probably recover more than the twenty dollars expressed m the note, but as he does not ask it it; is not the business of the court to force it upon him. The act of assembly, by its very terms, embraces the case, directs the consideration to be inquired into, and the court should have permitted it. The judgment must be reversed and the cause remanded for another trial.

Judgment reversed.