Nashville union and dispatch. [volume] (Nashville, Tenn.) 1866-1868, 1867-03-01
SUPREME COURT DECISIONS.
Nashville. december Term. 1866.
Reported for the Urion and Dispatch, by Linds
ley 4 Reid.


Reported for the Urion and Dispatch, by Linds-
ley x Reid.
james II. KeRdTitks as. james Ddris
PLEADING. Upon plea in abatement being
oyermled. defendant should have leave to plead
to the merits.
This is an attachment bill, filed in the
Chancerv Court at Nashville Ola the 9TH of
December, 1861, TO force the payment of
four notes, each originally for $1,000, exc
cuted by the defendant 10 the complainant
on the 4th of0etober, 1859, and respective
ly due and payable in two, three, four, and
five years. These notes were given for the
purchase money of lot Of land in the city
of Nashville, scld and by deed conveyed TO
the defendant. On the face of the deed, a
lien for the unpaid purchase money was re-
tanned and afterwards, by the consent of
the complainant, the defendant sold and
by deed conveyed one-half Of the original
lot to one Thos. G. Burge, for the sum of
$3200 which was accepted by the COM
plainant and credited in equal sums Of
$500 on the four original notes, leaving
due and unpaid on all the original notes
the aggregate sum of $4,000. The lien
specifically reserved on the lot sold, was
relineuished as TO the one-half thereof sold
to Burge; and this bill is brought to Sc
cure and enforce the payment Of the re-
mainder Of the purchase money by attach
ment.
The grounds of the attachment as laid
in the bill aver, "that the defendant alb
sented himself from the State of Tennessee,
for the purpose of defrauding his creditors,
and the more efiectually to carry ont the
design Of the said Davis to defraud his
creditors he left the State secretly, carry
ing all such means and effects as he could
take without exciting the suspicious of his
neighbOrs and his friends"
The attachment issued, and was levied
on part of the lot previously sold to the de-
fendant, and other lots owned by him in
Edgefeld. And on the 10th of May, 1862,
during the term of the Chancery Court at
which the process was made returnable,
the defendant, Davis, appeared and filed
his plea in abatement to the bill, in which
he positively denies the allegations in the
bill set up and relied on as the grounds of
the attachment. After the plea, and during
the same term, the Chancellor, upon the
application Of the complainant, appointed
a receiver to take charge of and rent ont
the house and lots attached, and account
for the proceeds, etc.
The proof taken in the cause is substan.
TALLY as follows:
In November, 1861, the defendant, being
opposed to the late rebellion, left Nashville
and went to Monroe, Louisiana, from thence
TO Brownsville, in Texas thence to Ha-
yana, New York, and back again to Nash
vile about the time the United States forces
occupied the city. He was a merchant,
and, prior to the time Of his departure, he
changed his mode of business and sold for
cash, instead, as formerly, on a credit. He
drew from the banks his deposits, and left
with his wife instructions and authority to
receive the proceeds of the sale Of goods as
they were made in the store.
He is proven to have been considerably
in debt" and that he left the State without
the knowledge of his clerks, with no in
tenti0n OF returning, until the city was oc-
Cupied by the United States military forces.
The Chancellor heard the cause on the
plea in abatement and the proof; and over
ruled the plea, recognized the jurisdiction of
the court, and entered a final decree, di-
recting the lots attached to be sold without
redemption; from which an appeal is prose~
cuted to this court.
Admitting for the sake of the argument,
that hegrounds laid in the bill forthe attach
ment are in substance conformably to the
requirements Of the statute, and that after
publication the court had jurisdiction, it
is clear, both upon the general principles
of equity pleading and the express provi-
sions of the statute, that the defendant was
entitled to make defence before final de-
cree Story's Eq Pl. S708; . Danl. Ch
Pr. S33-note 2.
The statute provides, Code sect. 1895,
Upon a plea or demurrer argued and over,
ruled, no other plea or demurrer shall be
| received but the defendant shall answer
the allegations of the bill, and in case he
fails to do so, by the next rule day, or by
| the time prescribed by the court, the bill
may be taken for confessed, or answer en-
| forced by contempt, as if no such plea or
demurrer had been filed"
A plea in the nature of plea in abate-
ment, was the proper if not the only rene
| dy to which the defendant could have, in
such case, resorted. The falsity or new
| existence of the cause, stated as the ground
! of attachment, is matter of abatement and
is not available after answering to the
merits. though denied and net proved.
| IOHltI q. lAult ~ lLdlOiis 7 HULL 1Otf tot o
BY the Code, sec. 3456, authorizing the
defendant to incorporate all matters of de-
fence in his answer, does not embrace mat
ters in abatement They must be Piled
specifically, as is clearly manifested by
sections 29Ol, 2902, 290S.
An answer to the merits would have
waived the jurisdiction and necessarily de-
feated the very object sought to be attained
| by the plea Code sec. 432l
The plea put in issue nothing but the
suficiency Of the grounds laid in the bill
/ for the attachment 1t rendered this issue
alone, which was accepted, and prooftaken
1 by the complainant to defeat it. The cause
was heard upon the issue raised by the plea,
and the Chancellor oyerruled it, and with
out leave to answer or otherwise put in q
defence TO the merits, or aver Judgment pro
confsso proceeded to hear the cause on the
merits, aud pronounce judgment against
! the defendants. This is error, and without
discussing the other Irregularities relied on
| in argument, the decree Of the Chancellor
must be reversed, and the cause remanded
with leave to the defendants to answer.
MTLLIGAN.