7 Ark. 171 | Ark. | 1851
delivered the opinion of the Court.
There is certainly no good, ground for the demurrer in this case. The bond given on oyer was literally and truly copied into the petition. The fact that the petitioner in his petition called it a note, amounted to nothing when taken in connexion with the instrument itself set forth literally, by which it was shown to be a bond. The bond given on oyer brought no new or variant fact upon the record.
The omission of the dollar-mark and the figures representing the amount of the bond, superadded at the margin above the writing, was mere surplusage, constituting no part of the contract, and, whether there or not, in no respect varied, diminished, or enlarged it.
There is not a doubt of the correctness of the decision of the Circuit Court, nor can we conceive of any probable or plausible ground for the appeal on the score of wrong or grievance, unless it be such to make a clear and specific charge of indebtedness in the language of the contract, and a positive averment that it has been broken, and in the absence of any valid defence as to either to render judgment thereon.
Let the judgment be affirmed with costs; and, under the provisions of the 40/7/- sec., c-Ji. 127, p. 828, Dig., let six per cent, in damages be awarded on the amount of the judgment rendered in the Circuit Court.