Superior Court for Law and Equity, Winchester District.
October 1807.
[S. C., infra, 334.]
A plea in abatement cannot be received after a general continuance; and an agreement to plead and try at the next term is equivalent to a general continuance.
If the defendant wishes to put the assignment of the bond sued on in issue, he must plead non assignavit. [Acc. Richardson v. Cato, 9 H. 466, and Oliver v. Bank of Tennessee, 2 Sn. 60, citing this case. See also Whitesides v. Caldwell, 9 Y. 421, and Act of 1819, 42 brought into the Code, sect. 2909.]
The court below overruled a demurrer to the defendant’s plea, and yet gave judgment for the plaintiff; the Appellate Court reversed the ruling on the demurrer and affirmed the judgment.
Page 249
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 nil debet; demurrer, which was overruled, and notwithstanding, the Court gave judgment for the plaintiff.
OVERTON, J. —
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.
HUMPHREYS, J.,
was inclined to think that the plea of nil debet
was good in case of an assigned bond but adjourned for further consideration.
HARRIS and WHITE, for plaintiff in error.
BARRY and WHITESIDE, for defendant.
ORIGINAL NOTE. — At October term, 1808, Powel and Overton, JJ., gave judgment conformably to the opinion delivered above by Overton, J.; Humphreys, J., dubitatur.