Harmon v. Handlin

1 Tenn. 434

• Court: Tennessee Superior Court for Law and Equity
• Decided: May 6, 1809
• Status: Published

Opinions

At the last term an entry was made to the following effect: "Declaration filed and admitted by consent, time to plead, or demur so as not to delay trial." This entry was made without application to the Court. A demurrer was filed during this term; and it was now moved, that the demurrer should be argued, so that if overruled a writ of inquiry might be executed this term. Agreements ought to be with the approbation of the Court, and this agreement so far as respected the giving of lime to demur should not have been allowed. Instances may be found in the books where parties have been allowed time to plead specially, but not to demur, unless it be a general demurrer fair and substantial.¹ It is stated this demurrer is for the purpose of delay, and it would be obstructing the course of justice to permit it; if overruled on argument day, it is certain we cannot execute a writ of inquiry this term. Hence, if this demurrer be frivolous it ought to be set aside so as to afford an opportunity to execute a writ of inquiry this term.

¹ Barnes, 263, 271; Burr. 59, 782; 1 Bl. 376; 3 Term Rep. 124; Burr. 605; 3 Burr. 1788, 1789; 2 Str. 1155; 1 Say, 88; Coleman Caines' C. 80, 416; 10 East, 237.