Shaw Assignee v. Bowen

1 Tenn. 249

Opinion

Overton, J.

The court acted correcty in overruling the plea in abatement. The agreement to plead and try at the next term, must be considered as equivalent to a general imparlance or continuance ; after which a plea in abatement cannot be received The plea of nil debet was not proper in this action. If the defendant had designed to put the assignment in issue, he ought to have pleaded non assignavit, agreeably to a decision at Nashville.

The court ought to have sustained the demurrer. It appears from the record, that they did not do it, but they rendered the same judgment as if they had ; therefore let the opinion as to overuling the demurrer be reversed, and the principal judgment be affirmed.

Humphrey’s J.

was inclined to think that the plea of nil debet was good in case of an assigned bond but adjourned for further consideration.

Note.—At October Term, 1808.

Powel J. and Overton, J. gave judgment conformably to the opinion delivered above by Overton j. Humphrey's. j, dubitatur.