
    Samuel Dinklespeil v. John C. Sanders, Exor.
    Pleading — Answer and Cross-Petition — Sufficiency of.
    It is not alleged, in the answer and cross-petition of appellant, that the choses in action claimed to have been delivered to Sanders, were against solvent persons, nor that anything could have been collected by the- exercise of diligence. Held, Such being the case, no judgement could have been rendered on the eros^petition, and the proof fails to. cure the defect in the pleading.
    APPEAL PROM TAYLOR CIRCUIT COURT.
    January 27, 1872.
   Opinion op the Court by

Judge Lindsay:

It is uot alleged iu the answer and cross-petition of appellant, • that the choses in action, claimed to have been delivered by the assignee Parrott to Sanders, were against” solvent persons, nor that anything could have been collected on them by the exercise of the most extraordinary diligence. Nor is it alleged that any amount whatever was collected by Sanders. No discovery is asked for, and no claim for damages • against Sanders on account of anything done, or anything he failed to do touching such choses in action, is set up. Such being the case, no judgment could have been rendered on this cross-petition. The proof in the case does not tend to cure the defects of this pleading. The court did not err in failing to refer the matter fo the master. Appellant did not ask for such reference, and did not object to the submission of the cause when it was heard.

Oaildwell & Sachs, for appellant.

J. B. Bobinson, for appellee.

Under the pleadings and proof, the circuit judge could not avoid dismissing the cross-petition.

Judgment affirmed.  