Nashville union and American. [volume] (Nashville, Tenn.) 1868-1875, 1870-10-13

tst71, to Cor more correctly denying the
execution of any promissory note or bill
of exchange, ETC., should make affidavit to
tho truth of his plea, and that the act un-
der confederation is only intended to put
q proven account on the same footing"
We hold the fair. construction of the
section of the Code to be, tina. the action
must be brought on the proven account,
that the defendant should have notice OF
the fact, that the foundation of the suit,
is such an account, In order that he may
deny the correctness of the same on oath.
We hold that the complainant should in
his declaration allege that the account is
an account from another county or State,
verified under this section of. the Code,
and make profert of such account IN his
declaration, in order that defendant may
be informed of the nature of the cause OF
action against him, and be able to make
the defence allowed by the statute. IN
less this shall be done, the defendant may
in any case be surprised on the trial OF the
case.
We DC not think the plaintiff was en-
titled to introduce his account in this
case, because from his declaration it does
not appear that his action was brought on
q proven account under the statute, but a
simple account which imparts nothing
more than an Indebtedness of party to
another in the form of an account, but
certainly does not impart in any way that
such account has been so verified as to
place it on the footing of promissory
note as evidence, and conclusive as to
the liability of the defendant. The evil
dence introduced was of different char
acter from the cause of action alleged and
ought to have been rejected by the court.
We hold further, that the defendant,
who wishes to deny the correctness of the
account, described and referred to in the
declaration of plaintiff, must file such de-
NAL, with his plea, to plaintiffs declara-
ton, unless he shall be permitted to file
it at a subsequent period, by the court,
which the court may do, in the exercise
of its discretion.
This opinion does not conflict with the
case of Brien VS.. Peterman and Cope, 8
Head. 498. That case only holds that
plaintiff was not entitled to a new trial on
account of alleged surprise by the denial,
under oath, of the defendant having been
filed at the time it was filed in that case.
The court held, very properly, that If he
was not prepared to prove his demand,
after this denial, he should have asked for
q continuance. Having gone into the
trial without objection, he could not claim
new trial on account of alleged surprise
by fact well known to him before the
trial was commenced. .
1t is insisted, however, that the failure
of complainant to file his account with
his declaration, is only equivalent to q
failure to make profert of promis-
sorry note, when sued on, and could only
be taken advantage of by special demur-
rer. In our view of this case, no de-
murrer could have been filed for such
course, as the fact that the suit was
brought on account, proven under statute,
did not appear on the face of declaration.
The judgment will be reversed and case
remanded for trial. FREEMAN, Judge.
A true copy.
Test J. F. DKkDKRICK Clerk