Nelson v. Cummins

1 Tenn. 436

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

Opinion

Per Curiam.

It is every days practice to set aside pleas in abatement which appear to be evidently frivolous, and this seems to be such a plea. (a) If the fact had been as suggested in the plea, that this writ was not executed ten days before the commencement of the term,it should have been so pleaded,upon which issue might have been taken. The act of assembly does not require that it shall appear on the writ when it was executed; but that it shall be executed atleast ten days before court. The act requires it to be indorsed on the writ when it issued, and when it came to the hands of the sheriff, and the court will presume the officer did his duty. The second exception taken by the plea is equally untenable. The initials according to universal practice, signify deputy sheriff, whose act is equivalent to that of the principal. (c) The plea must be set aside and the defendant plead in chief.

) Hardin 362. 11 East. 297. 3 Binney 28. 3 Mass. 379. 3 John. 378.

(a) 1 John. 1 35. 3 John. 541. Coleman and Caine's C. 80, 415. 10 East 237

(c) Hardin293, n.