Smith v. Wallace

12 Tenn. 572

Opinion

Peck, J.

delivered the opinion of the court.

The first question arises upon the plea of former recovery. The form in which the record presents this question, is such that it cannot be noticed. After trial upon such pleas, every intendment will be made to support the verdict. But as it is insisted the court misled the jury on the point, it is deemed proper to say, that we are all of opinion the justice had not jurisdiction against the endorsers, and therefore no error intervened in the charge.

On the other point, that the plea of non-assumpsit made proof of the assignment indispensable to a recovery, this court holds the rule as laid down by the circuit judge the correct one. To throw upon the plaintiff the burthen of proving the assignment, the plea which denies it must be on oath. In whatever way we take the plea, the affidavit is wanting to make proof of the assignment necessary.

Judgment affirmed.