
    DENTON vs. MOORE’S ADMR.
    Knoxville,
    November 1811.
    Writ of Error from the circuit court of Cocke county.
    If a statute gives a remedy, where none existed before, a defendant must, by his pleading bring his case within the statute.
   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 Haywoods Revisal, p 471, chap. 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.  