Dickinson v. Tunstall
Supreme Court of Arkansas
Debt, on a bond for ‡500, due at 12 months, and payable 'at the Branch of the State Bank at Batesville, with ten per cent, interest till paid, tried in Independence Circuit Court, in June, A. D. 1841, before the Hon. Thomas Johnson, one of the Circuit Judges. Tun-stall’s declaration stated the bond as payable generally, and the breach was silent as to the interest.
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Debt, on a bond for ‡500, due at 12 months, and payable 'at the Branch of the State Bank at Batesville, with ten per cent, interest till paid, tried in Independence Circuit Court, in June, A. D. 1841, before the Hon. Thomas Johnson, one of the Circuit Judges. Tun-stall’s declaration stated the bond as payable generally, and the breach was silent as to the interest. The defendants obtained oyer, and demurred for variance, and because the bond was not set out according to its legal effect, and also pleaded non est factum, without affidavit, which was stricken out. Demurrer overruled, judgment…
1Opinion of the Court
By the Court,
Ringo, C. J.
There is, manifestly, a variance between the obligation described in the declaration and the one given on oyer, in this, viz: that the former is described as being payable generally, and not at any particular place, while the latter is expressly made payable in the Branch of the State Bank of Arkansas, at Batesville, which, according to the judgment of this Court, in the case of Sumner vs. Ford et al., 3 Ark. 389, is fatal to the pleading. The demurrer was, therefore, well taken, and ought to have been sustained. The breach is alsó insufficient to warrant the…
2Cases cited1 opinion
- Sumner v. Ford & Co.Supreme Court of Arkansas · 1841
3Cited by1 opinion
- Damarin v. Young Bros.West Virginia Supreme Court · 1886