Bacon v. Parker

• Citation: 2 Tenn. 55
• Parties: BACON, ASSIGNEE, v. PARKER.
• Decision Date: 30 September 1809
• Court: Tennessee Circuit Court

2 Tenn. 55

BACON, ASSIGNEE,

v.PARKER.

Superior Court of Law and Equity of Tennessee.

September, 1809.

In this State, the Court never compels a nonsuit, nor gives judgment to that effect without the consent of the party nonsuited. [Acc. Hunter v. Sevier, 7 Y., 134. And see Littlejohn v. Fowler, 5 Cold., 288, where this case is cited.]

In an action on bond, a plea in abatement, that, at the suing out of the writ, the demand was, by credits indorsed on the bond, reduced below the sum necessary to give the Court jurisdiction, without craving oyer, and concluding to the Court, is bad, and will be set aside on motion.

Where an issue is made up to the country, on a plea in abatement, and tried, there can be no further pleadings. [Acc. Straus v. Weil, 5 Cold., 127, citing this case.]

[Cited in: 4 Heis., 70;5 Lea, 639;16 Lea, 358;5 Pickle, 308;12 Pickle, 445, 456.]

Debt for $300. Plea in abatement, stating that, on the day of suing out the original writ, Bacon, the plaintiff, and defendant, were residents of this district; and that it appears by credits indorsed on the obligation, the demand was reduced below the sum of $250, or £100; wherefore the plea prays judgment whether the Court will take cognizance, &c.

It was moved to set aside this plea; when Kennedy and Campbell, for the plaintiff, argued that the Court could not, on any principle, look to the credits indorsed, making no part of the declaration, unless the defendant had craved oyer, and set them out in his plea; this he has not done. It is however denied that the Court could, in that case, consider these credits; being matter of evidence for the consideration of the jury, and not of law for the Court. 1 Hay. 122, 123, 454, 455. Our Constitution secures the trial of facts by jury; and whether these credits, unless expressly admitted, ought to be allowed or not, is proper for the jury to inquire. In order to take advantage by plea in abatement, the objectionable matter should appear from the writ or declaration, otherwise the objection must await the return of a verdict. It was also insisted that this case fell within the exception contained in the second proviso of the sixth section of the Act of 1794, c. 1 (see the case of Hendrick v. Stewart), in these words, “that nothing herein contained shall extend, or be construed to extend, to suits on bonds, penal bills, or any other action of debt grounded on a penalty, where the balance due on such bond or penal bill, or other action of debt, is of less value than the sums hereinbefore mentioned to be limited for bringing suits in the said courts.” The ground of this action is a bill single, and comes within the meaning of this proviso.

M'Kenney, for the defendant.--This plea contemplates facts to be tried by a jury. First, whether the plaintiff and defendant lived in the same district. Second, whether the debt is reduced by credits below the sum of $250. If they lived in the same district, and the sum really due is less than $250, this court has no jurisdiction; and the plaintiff must be nonsuited, and pay costs; agreeably to the sixth section of the Act of 1794, c. 1. This is not similar to a plea that the debt really due is less than fifty pounds; for, in that case, the point of residence can never come into view; as the Court would not have jurisdiction, whether the parties lived in the same district or not. What is necessarily implied need not be averred; which is the case with respect to the writ, and bond making part of the record. 4 Bac. “Pleas and Pleadings” in the introduction to that title. Oyer, therefore, was not necessary. If an issue be made up, the trial will be peremptory; and, if the plea is false, the plaintiff will have every advantage that would arise on a plea in chief. He will not be delayed. 2 Hay. 115. This obligation is running on interest, and before a determination of the suit takes place, the running of interest will make the sum greater than $250; and what means will the Court have, after verdict, by which it will be able to ascertain the sum really due at the commencement of the suit? None.

The second proviso is a proviso to the first, and not to the enacting clause, 2 Hay. 52, As the real sum due can never be ascertained by the Court, after verdict, the proper method of proceeding is in abatement, and then nonsuit.

Overton, J., delivered the unanimous opinion of the Court.

Our Acts of Assembly, 1801, c. 6, sec. 58, respecting nonsuits, does not apply to this case. The practice in England and this country differs on this ground. Here, as well as in North Carolina, in common cases, the...