Shaw v. Bowen and Terry

1 Tenn. 248

Opinions

[S. C., infra, 334.] In Error. — The writ was in debt upon an assigned bond, and after an alias a judicial attachment, upon the return of which, it was agreed to "plead and try at next term." The defendant then pleaded in abatement, which was overruled; he then pleaded nildebet; demurrer, which was overruled, and notwithstanding, the Court gave judgment for the plaintiff. The Court acted correctly 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 overruling the demurrer be reversed, and the principal judgment be affirmed.