Childress v. Foster
Supreme Court of Arkansas
ERROR to Independence Circuit Court. This was an action for breach of covenant, on bond, with penalty for the performance of the covenant.
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ERROR to Independence Circuit Court. This was an action for breach of covenant, on bond, with penalty for the performance of the covenant. The plaintiff, in his declaration, sets oat the condition: “Thai myself and Paxton Tucker have this day obtained judgment in the circuit court for said county against said Foster; and I agree with said Foster that my books shall, at any time, be examined by said Foster, or any person he may choose, for the years, A. D. 1836, and’37, containing the said Foster’s account with myself and said Tucker, and if it does appear, upon examination of the whole…
1Opinion of the CourtDickinson, J.
As far as the parlies pleaded over, the demurrers are virtually withdrawn; but to the plea, to which the demurrer was sustained, it is different; for, a demurrer, in whatever stage of the proceedings it is taken, reaches back, in its effect, through the whole record, and, in general, attaches ultimately upon the first substantial defect in the pleadings, on which ever side it may occur. Thus, if the declaration is ill in substance, and the plea frivolous, as is contended by the plaintiff, and so decided by the court below, and demurrer joined on the plea, judgment must be given for the…
2Cited by2 opinions
- Faller v. Davis Et Ux.Supreme Court of Oklahoma · 1911
- Terry v. TaylorSupreme Court of Arkansas · 1920