Opinion · Tnlaw Tennessee
DENTON v. MOORE'S ADM'R, 2 Tenn. 168 (1811)
Denton v. Moore's Adm'r., 2 Tenn. 168 (Court of Errors and Appeals, Knoxville. 1811)
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- Opinion
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- Tnlaw Tennessee
- Jurisdiction
- Tnlaw
- Date
- 1811-01-01
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- general
DENTON v. MOORE'S ADM'R, 2 Tenn. 168 (1811) Denton v. Moore's Adm'r.Court of Errors and Appeals, Knoxville. November 1811. No evidence need be given except that which tends to prove some point put in issue by the parties.
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DENTON v. MOORE'S ADM'R,2 Tenn. 168(1811)
Court of Errors and Appeals, Knoxville.
No evidence need be given except that which tends to prove some point put in issue by the parties. And, therefore, where to a declaration in covenant on an obligation for money payable in horseflesh, the defendant plead covenants performed and tender, on each of which issue was joined, the plaintiff need not prove demand of payment, or notice under the Act of 1807. [Acc. Shelbyv.Wynne, M. Y. 93, citing this case, and overruling any language used in Vancev.Jones, Peck, 333, in conflict. See, also, Crockettv.Moore, 3 Sn. 149, citing this case.]
If a statute gives the defendant a right where none existed before, he must, if he wishes to avail himself of these provisions, rely upon them by plea, and the declaration need not contain any averment to bring the case within the act. [Acc. Townsendv.Sharp, 2 Tenn. 192.]
Writ of Error from the Circuit Court of Cocke County.—
OVERTON, J., delivered the following opinion of the Court: —
The record shows this to be an action of covenant, founded on an obligation for one hundred and five dollars, payable in horse-flesh. The declaration is in the usual form; the defendant in the Circuit Court and plaintiff here pleaded covenants performed and tender; upon each of which issue was joined. Upon the trial of the cause, Denton's counsel applied to the Court to instruct the jury that the plaintiff Moore could not recover, as she had not proved that she had demanded payment at the house of Denton, or given him notice when and where she would receive the property, as required by the first section of the Act of Assembly of this State, passed in the year 1807, found in Haywood's Revisal, p. 471, c. 95; which direction the Court refused to give, and instructed the jury that such evidence need not be given under the issues that had been made up; to which opinion of the Court exception was taken by Denton's counsel, and the jury having found a verdict for Moore, and the Court having given judgment upon that verdict, Denton brought this writ of error. And now the single question is, whether the Circuit Court erred in its instructions to the jury? We are clearly of opinion it did not err. No evidence need be given, except that which tends to prove some point put in issue by the parties. If Denton had wished to defend himself under the statute, he ought to have done so by his pleading. For these reasons, it seems to us that the judgment of the Circuit Court ought to be affirmed.