Nashville union and dispatch. [volume] (Nashville, Tenn.) 1866-1868, 1868-02-29
LEGAL.
Decisions Of the supreme Court Of
Tennessee. at Nashville, December
srawFu IsC-

decisions OF the supreme NotsEt W.
Tennessee. at Nashville, Deeember
Term, 1867.
Reported for the UniOn and Dispatch, by 5. ).
Henderson, Attorney at Law.
In action founded upon a note, ." tie omission Of
The plaintiff 70 Gle the note with the deciara-
ton L not % matter that can be reached by de-
over can only be- ded when profert is made
in the declaration. n It is then denied, the
prayer Of over must be entered on record, else
il is Of no validity.
wlloughby Williams. IN error, rs. P. Bryan
This is an action Of debt brought in the
Circuit Court of Davidson county, 10 re-
cover promissory note Of $55J5 So, drawn
by the plaintiff in error, in favor Of K. {.
McNairy, Gas To whom the action was die
missed and Endorsed, and for value, de-
lvered to the defendant in error.
The declaration is in substantial con.
forInity to the requirements OF the Code,
and formally purporis 10 make proiert OF
the note sued on hut an informal demur-
rer appears to have been placed in the hle
Of papers, without Enforcement on II, as
signing as cause Of demurrer, that the
plaintiff below had not by his declaration
made profert Of the note sued on. Imme-
diately following the demurrer, there APP
pears W bF III AllRk HAAAAhBs nAEANh ~
the defendants attorney, in which oyer OF
the note sued on is crayed, and the Judg-
nent Of the court asked, whether or not
the defendant shall be compelled TO make
any other or further ansWertothe declaration
until the note shall be produced in court.
No action whatever appears 20 have been
taken upon the demurrer, or other infor-
mai writing filed with the papers. They
seem 10 have been overlooked or totally
disregarded, and az the next succeeding
term judgment final by default was taken
against the defendant, from which an APP
peal ia error is prosecuted to this court.
The record stands in an anomalous at
titude, and presents painful commentary
upon our departure, under statutory regu-
lations, from the science OF pleading But
we must deal with IL as We find it, and we
are Of the opinion, treating the informal
demurrer for the present as regularly hled,
that the omission 10 file the note with
the declaration, was not a mailer
that would be reached by demurrer,
profert being made in the declaration and
the writing called in argument, plea OF
oyer, clearly indicates that the deiecl
sought to be reached by the demurrer was
not the want Of proferi, but the omission
TO Gle the note sued on with the declara-
ton.
This being the real object and purpose
Of the demurrer il might have been, upon
motion, ordered off the file, or treated az
frivolous and disregarded altogether. An
derson ct al. rs. Allison and Anderson a
60. Head l22.
At common law andalso by the Code sec.
1893. demurrer lies for want Of proiert
/ Chitty Pleadings, 3GG, APO.
But here profert ia made, and there is
a wide distinction between profert offered
and the aetna! production of the paper
sued on in court. When profert is offered
in the declaration, oyer is then and only
then demandable Stephens on pleadings
Gg. And if il be denied when il ought to
he granted, the party making the claim
should move the court 10 have the prayer
Of over entered on record, which entry
il in the nature Of plea, and plaintiff may
cOunter-plead the right 10 oyer, or strike
out the rest Of the pleading following the
over, and demur; upon which judgment OF
the court il, either that the defendant have
over, or that he answer without il, ]
Chilly Pla., 432. See also, Anderson e.
al ~. Anderson, Allison a. Co. 2 Head l22.
This case would have reached the object
Of both the alleged plea and demurrer, and
given the defendant proper status on the
record. But the informal demurrer as pre-
scented is an sbsurd practice, and might, as
we have already shown, been stricken out
upon motion, or treated as a nullity.
The plea called "a plea or oyer filed
with the paper, must also fail, because OF
. 4 4 4. Al. l.. g
court, entered OF record, which entry would
then have stood az in the nature Of plea,
and demanded the judgment Of the court
upon IL.
Il follows, therefore az We think, IN the
absence of any substantial defense, shown
20 the merits OF the action, that there was
nothing either in the demurrer or other
writings that the court might not Disregard,
aud allow Judgment by deiault
Affirm the Judgment
MUIIGAN. Judge