Russell v. Smith ex rel. Prince
Tennessee Supreme Court
This was an action of covenant brought in the name of Smith, for the use of Prince, against Russel. The declaration stated that the said covenant was in the possession of a third person, with whom it had been agreed by the .parties that it should be left, and who refused to deliver it into the possession of the plaintiff. (1) Because profert to the covenant sued on was not made, the declaration was demurred to, which demurrer was overruled.
Read the full summary
This was an action of covenant brought in the name of Smith, for the use of Prince, against Russel. The declaration stated that the said covenant was in the possession of a third person, with whom it had been agreed by the .parties that it should be left, and who refused to deliver it into the possession of the plaintiff. (1) Because profert to the covenant sued on was not made, the declaration was demurred to, which demurrer was overruled. The defendant filed five pleas, among which was the plea of payment, and two others, which on motion the court ordered to be struck out as frivolous. To…
1Opinion of the Court 1
Upon the above state of facts,
2Opinion of the Court · GreerGreer, J.
1. That the plaintiff, not being entitled to the possession of the covenant, the statement in the declaration is sufficient excuse for the failure to make profert of the instrument sued on.
2. The technical plea of payment, being irrelevant to an action of covenant, was properly stricken out. It is not enough that the facts of the plea meet the allegations of the declarations; it should also be technically relevant to the action.
3. The demurrer to the plea of set-off was well taken, because mutual debts can alone be pleaded as set-off; and because part of the…
3Cited by46 opinions
- Nixon v. SiricaCourt of Appeals for the D.C. Circuit · 1973
- Keller v. AshfordSupreme Court of the United States · 1890
- Beneficial Hawaii, Inc. v. KidaHawaii Supreme Court · 2001
- Olcott v. GabertTexas Supreme Court · 1893
- Harms v. CohenDistrict Court, E.D. Pennsylvania · 1922
41 more not listed; retrieve them via the Exa API.