Brownlow's Knoxville Whig. [volume] (Knoxville, Tenn.) 1866-1869, 1868-10-14
SUPREME COURT OPINION.
TESSEssEE, DECEMBER TERM 1857.
ruoaAs i. coforrtr, Arrqrsrr qr.rnAr AsO nrrorrrn
wILLoUGHBY WILLIAMS, IN ERROR, rs. WIN. P

WIbL0UGHBY WILLIAMS, IN ERROR, Is. WIN. p
Fr Ma BEYAN.
This is action Of debt brought in the Circuit Court
Of Davidson county to promissory note Of S.
555,55, drawn by the plaintiff in error in favor of
McNairy, las TO whom the action vss dsu,ssel) and
ndorsed, and for value, delivered to the defendant IN
error.
The declaration is in Substantial, 20 A
quiremens o. the code and formerly purports to make
prOfert OF the note sued but an Informal demurrer
appears to have been placed in The fle ~ .n-s itb
any Endorsement it, assigning as c.nss Of ierur
reF that the plaintiff below had not NV his clarat;o
made proieI. OF tae noe sued on, Immediately follow
ng signed by the defendants attorss IN ybicb over ~
the note Is served and the udg msnt Of the eourt
Whethei OF nus o defenda shall be compelled to make
any or further ansvet 10 the ieel,r;o All ,ba 900
shall DO produced in court ..lfs -. 80 -.
No action whatever appears 10 have been t,keD mon
the demurrer or other infomaI writing filed with the
papers They seem to have been overlooked or totally
disregarded and at the nextsuecceng term Judgment
final by default taken against the defendant from
which appeal IN error is prosecuted to this court
The rcorr.tJtaads In anomalous attitude and pre-
sents painful commentary upon our departure under
statutory regulations, from the science of pleading But
must deal with IL We find It, and we are Of the
OpnioB treating the inforai demurrer for the present
regularly cd that the omission to file the note with
the declaration, not matter that could be reached
BY demurrer, profer being made ia tho declaration and
the writing called in argument plea Of oyer clearly
indicates that the defect sought to be reached by the de-
not the want Of prOfert but the omission to
fle the note sued with the declaration.
This being the real object and purpose of the demurrer
IL might have been, upon motion, ordered of the ie
treated frivolous and disregarded altogether Ander-
ct al. Allison. and Anderson Co. Head. 1872.
At common law and also by the CODE sec 1888, de-
murrer lies for want Of profert Chy Pleadings, 366,
ago. .rfigN
But here profcr is made. aRd there is wide distnc-
tOn between proer offered and the actual production of
the paper sued in court When prcfert is offered in
the declaTaou oyer is then and only then demandabe.
Stephens peadings 90. And il it DO denied when it
ought to be granted and the party making the claim
should move the court 20 have tho prayer OF oyer entered
record which entry is in the nature Of plea and the
plaintiff may counterqead the right to eyer strike
out tho rest Of the pleading following the oyer and de
upon which Judgment Of the court is, other that
the defendant have oyer, that he without it.
Chitty Pld 4S2. See also, Anderson, ct al Ander
SON. Allison & Co., 2 Head, 1872. rl "a
This would have reached the object of both the
alleged plea and demurrer, and given the defendant a
proper the record But the informal demurrer,
as presented, is absurd practice; aud Knight, we
have already shown have been striker out upon motion,
or treated as a nulty.
The plea, called " plea Of oyer filed with the paper,
must also fail because of its not having been under the
order of the court entered Of record which entry would
then have stood in the nature of plea and demanded
the judgment of the court upon 1t. 7saG H fe
1t follows therefore, as We think, IN the absence OF any
sub stantal defense shown to the merits Of the action
that there was nothing either in the demurrer other
writings that the court might not disregard, and allow
judgment by default 81
Affirm the Judgment. MILLIGAN, Judge,
f Test; J. q. FRAZER, Clerk. l