Hicks v. Vann
Supreme Court of Arkansas
This was an action of assumpsit, tried in the Phillips Circuit Court, in June, 1842, before the Hon. John C. P. Toleeson, one of the circuit judges. The declaration contained three counts. In the first and second, Vann sued Hicks, as the endorser of a bond by a third person, payable to Hicks or order. The first count averred no demand of payment on the obligor, or notice, nor any excuse therefor.
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This was an action of assumpsit, tried in the Phillips Circuit Court, in June, 1842, before the Hon. John C. P. Toleeson, one of the circuit judges. The declaration contained three counts. In the first and second, Vann sued Hicks, as the endorser of a bond by a third person, payable to Hicks or order. The first count averred no demand of payment on the obligor, or notice, nor any excuse therefor. The second averred a waiver, at the time of assignment, by the defendant, of the necessity of demand and notice. The third count was for money had and received. The bond given on oyer was payable to…
1Opinion of the Court
By the Court,
Dickinson, J.
It is clear, that the first count is defective, because it does not aver demand and notice, which are necessary to fix the assignor’s liability, unless he shows a sufficient legal excuse to supersede the necessity of this averment. This is not done. The judgment overruling the demurrer to this count is, therefore, wrong.
The issue of non-assumpsit was not disposed of, and in this there is also error. If there is a question of law presented, or an issue of fact, in both cases it is the duty of the court fo have these points disposed of. If it is purely a question of…
2Cited by1 opinion
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