Brownlow's Knoxville Whig. [volume] (Knoxville, Tenn.) 1866-1869, 1866-09-26
Attest J. C. FRAZER, Clerk.
L. TUMLEY vs.. GAINESVILLE AND MEMPHIS RAIL


The writ in this commands the sheriff summon ow
the Memphis GAINESVILLE and Louisville
Railroad Company In action to its damages hundred
dollars returned served 4. L. Aensworth, and
E. Tumey, and Thompson Anderson, and to O.
". Hening.
The declaration for i've hundred dollars plantH
from defendant for note executed by A. T. AenswoTh
O. Hening on the 10Th day Of August 1852 payable to de
PENDANT Edward Iume on the Sd day Of January l6O and
him Endorsed to defendant I. Anderson by in
dorsed TO C. G. Smith, Treasurer of the H. c. and Rail-
road Co.. said note at the Bank Of Tennessee at Cak
vile. And the plaintiff there is due from defendant
said note five hundred dollars with interest from first
January 1850, and protest fees.
January term, 1851, the plaintin entered a9z
defendant Henning, and Judgment
fault against the other defendants for the Of five hundred
and two dollars debt in the declaration mentioned stated
in the entry Of the Judgment and trtyCnc dollars and
twenty five cents interest thereon.
First-It will be observed the statements Of the dscs
ration which been quoted above that there
declaration ayernent Of presentation for and demand
p5 1 them responsibT, The nofs sboTJ a. t:, 70
presented for payment and demand payment made
the indorserE The Of these in the declaration
essential and without such there is moi
recovery against the defendant TUmey ndorsr Tn
effect of the Judgment by default any OF he
admission of the facts the declaration
the plaintiff ground of action and these present
payment and stated in the declare
ton, the judgment by default
them The consequence that the pcn has stated
established such state Of facts showed he had
right against the defendant Tumley ndorer
For this the judgment Of the court below
versed and the cause remanded Tor another trial Even in
where there yerdicts such defect the
cured thereby Aiken
30. Want of title is not cured any 10y verdict;
tive are because presumed although
allegations made with entire certainty precision
they proved to the satisfaction Of the But this
cannot be 50 used as to dispense with ayerment material
to the plaintiffs right of action Greer Bumpuss Martin
and Yerger l0 "a But in the Of the Judgment BY
fault fhere founded upon verdict Of urv
any foundation for presumption by which the judgment
be aided The stands upon The alone and
that fails TO show such state Of facts gives the plaintiff
right to judgment against the defendant the aver
ment Of facts material and essential TO establish right of
action against the defendant there nothing
court to the omitted facts existed Of IL.
very berality of inendmsnt the proceed
of the inferior since the adoption our C ID
court would probably Of judgment by default in
which the statement Of plaintiffs
declaration only defective statement such caus. ~
action feel authorized to sustain the Judgment code section
$50: No writ Of other proceeding civil actions
the Supreme Court Of this State shall uashed
missed for any defect, emission o. Importation"
Code, section 800: " AL demurrsrs motion. in arrest
Judgment Wrts OF error for matters Of
abolished Code section 1856 " In material variance
ror omission defects in all these may b. dsregar
or the court may direct without Code
section 1851 The court allow material amendments
any stage of the proceedings such terms and subject u
SUCH rules as II prescribe Code, section zs55 NJ
civil suits shall be dismissed for necessary parties
OF the form Of action for want Of aver
ments in the pleadiDgs.
These broad ample provisions Of the Code fully author
lied the disregard all mateTial yariances5
omissions or defaults upon trial Of writ OF
appeal in the Of writ OF errors nom judgment by
default within this category OF action effectively
in the declaration might be held 70 fail But these pro-
visions do not authorize sustain judgment BY default
in in which there omission IN the plaintiff
alton to state any action against the defendant
TO the judgment
tel IN he stated declaration may exist court vim
only reverse the Judgment by default the cause
for trial upon merits with leave plainti to mend
The declaration. d. CAMPBELL. Special JuI-e-
I,t-s+. i y FE,zEE. Clerk 'sN'