The Arkansas banner., 1844-04-03
SUPREME COURT OF ARKANSAS.
J ANUARX TERM, Is44.
J. E. KNIGHT, Attorney at Lalo.

J. E. KNIGHT, .4tiofaey at Laa0.
 DIcKERsoN vs MORRISON.
 Per RlNGo, c. J-Jan. 15, This IS an action of debt. instituted by the appellant, as assignee Of William Thomson, in the cir cult court of Independence county, against the appellee, founded on writing obligato- ", which, together with the assignmentthe9e- of by Thomson, the payee to the appellant, appears from the transcript of the record be- fore us, to be well and sufficiently set forth and described in the declaration, according to their legal effect and operation. The ap- police appeared to the action, craved oyer of the writing obligatory sued on, and the as signment thereof, which was granted, and thereupon demurred to the declaration, aud therein assigned specially as causes of de- mufer the following-Viz: First, that there is a variance between the writing obligatory Set forth a the declaration and the one given on oyer: Second, that there is a variance be- tween the date of the assignment thereof, as stated in the declaration, and the date of the assignment thereof, shown by the oyer. the former being the 10th day of April, 1872, and the latter the 18th day of April, l842. Third, the declaration states the assignment having been made by '.William Thomson" and the oyer shows an assignment of the obligation by @Wm. Thomson, administrator of Math. Dickinson .'-Fourth, that the breach assign ed in the declaration is insufficient in this, that it does not negative the payment of the debt by BarRet, the co-obligor of the deiend- ant in the writing obligatory sued on, either to Thomson the obligee, before the assign ment thereof, or to the plaintiff, therealter.- The plaintiff joined in the demurrer, and Che court, on argument and consideration thereof, adiudged the declaration msuffi- cient, and thereupon gave final judgment for the defendant in bar of the action, to reverse which, the plaintiff has brought the case before this court, by writ pf error, and by the assignment of errors, questions the correctness of the judgment pronounc- ed to the declaration.
 The three first causes of demurrer special ly assigned, allege variance between the obligation upon which the action is founded, and the assignment thereof to the plaintiff as described in the declaration, and the obli- gation and assignment shown upon oyer, and may, therefore, well be considered together. The declaration does not purport to set forth the writing obligatory or the assignment in hGc uerbd, or according to their tenor, but simply according to their legal operation and effect, and therefore, the plaintiff, according to the well established principles of pleading, will not be prejudced by any verbal misde- scription of the instrument; and the pleatl- ing must be adjudged good, if 1t states cor rectly the legal effect and operation of the in- strument constituting the foundation of the action Upon a careful comparison of the writing obligatory and assignment thereof, as shown on oyer in this case, with the ale gations, descriptive thereof in the declaration, we de not perceive any material variance be- tween them, and cannot conjecture Tn what particular a variance was supposed to exist The parties to, as well as the dates and sum mentioned in the writing obligatory, and the parties to the assignment thereof, all appear | from the transcript before us, to be well and truly set forth and described in the deelara- ton. The demurrer, therefore, so far as Ii depends on these grounds, is not well taken
 The fourth objection is, that the breach assigned in the declaration is insufficient, in- asmuch as it docs not negative the judgment of the debt by Barnet, one of the obllgors who is alleged to have executed the writing obligatory in question: Fhe.breach after ex- pressly negativing the payment thereof by Morrison, to either the payee or assignee concludes thus thor did the said Jeremiah Baraet in his lifetime, pay the same in any manner howsoever, but the said writing ob- ligatory still remains wholly unpaid, to tht damage, Sec" Can these allegations be true and still the debt in fact have been paid ei ther by Barnett in his lifetime, or his lega rspr preseasatives since hls death. either to thf l payea O. his assignee' We think not: Fo l the allegation that the debt '.stll remains