62 Tenn. 16 | Tenn. | 1873
delivered the opinion of the Court.
The plaintiff declared upon a note of which the declaration makes profert, and which it describes. The pleas were nil debit, payment and failure of consideration. The note was not produced on the trial, though its production was demanded by the defendant. There was no evidence whatever, and the trial was had upon the pleadings — there being no pleadings except the declaration and the pleas aforesaid. The verdict and judgment were for the plaintiff for the amount of the note as described in the declaration. The defendant has appealed. in error.
The Court charged the jury as follows: “The plaintiff sets forth his cause of action in his declaration, as founded on a note described in the declaration. To this the defendant pleads, first, nil debit-, that is, that he does not owe the debt; second, payment, that is, that he has paid the note mentioned and described in the declaration; thirdly, a failure of the consideration of the note. If no evidence has been introduced, you will consider the case upon the pleadings of the parties. It is a rule of pleading, that whatever is averred by one party, and is not denied by the other, is admitted. The defendant’s first plea of nil debit does not amount to a denial of the execution of the note described in the declaration, for its execution could not be denied except by plea under oath; the plea of payment admits the
We think his Honor, the Circuit Judge, has misapplied the rule of pleading in this case, and so far as it affects the plea of nil debit. The gravamen of the action, as set forth in the declaration, is an indebtedness by the defendant to the plaintiff, in the sum of money due by a promissory note described in the declaration. The declaration makes profert of the note, but profert is a mere notice or assurance to the Court and the defendant that the note is at hand, and ready to be produced upon oyer demanded, in the progress of the pleading, or in evidence upon the trial. The averments of the declaration are not evidence, except when they are admitted in fact, or. by implication of law on a failure to traverse them. Now the plea of nil debit to an action like this to recover a debt puts in issue, not the execution of the note, but the existence of the debt. The note may exist, but its production may show that it is void upon its face for immorality or illegality, or credits endorsed
Reverse the judgment.