#### State Bank vs. Cate, et al.

The petition and summons being in good form, the court below erred in striking the iatter from the files.

Writ of Error to Independence Circuit Court.

On the 24th day of June, 1847, the Bank of the State filed a petition in debt in the Independence circuit court, as follows :

“ County of Independence:

“ To the circuit court of the county of Independence, at the term thereof, commencing on the fourth Monday after the fourth Monday in October, A.D. 1847.

Your petitioner, the Bank of the State of Arkansas, the plaintiff in this cause, states that she is the legal owner of a promis-ory note against the defendants, to the following effect:

Batesville, July 1, 1843.

$153 00.

Twelve months after date, we, John T. Cate, as principal, and Henson Simpson and Robert Monday, as securities, jointly and severally promise to pay to the Bank of the State of Arkansas, or order, one hundred and fifty-three dollars,-cents negotiable and payable at the Branch of said Bank at Batesville, without defalcation, for value received, (and the Financial Receiver is hereby authorized to insert the date on the day of renewal.)

JOHN T. CATE,

HENSON SIMPSON,

ROBERT MONDAY.

Yet the debt remains unpaid : therefore she demands judgment *290for her debt, and damages for the detention thereof, together with costs.” — Sevens.

Upon which the following writ was issued:

“ The State of Arkansas,) g g County of Independence. )

The State of Arkansas, to the Sheriff of the county of Independence — Greeting:

You are hereby commanded to summon John T. Cate, Henson Simpson and Robert Monday, if they be found within your bailiwick, to appear before the judge of our circuit court of Independence county, at the court house in the county aforesaid, on the first day of our next term, at a court to be holden on the fourth Monday after the fourth Monday in October next, then and there to answer the complaint of the Bank of the State of Arkansas to a plea of debt, for the sum of one hundred and fifty-three dollars, and that you make due return of this writ to our said circuit court.

In testimony whereof, I have hereto set my hand as clerk of said circuit court, and affixed the seal of office, this 26th [L.S.] day of June, A.D. 1847, and of the Independence of the United States, the seventy-first year.

D. W. LOWE, Clerk .”

The writ was returned duly served on all the defendants.

At the return term, defendant Catq. filed a motion “ to strike from the files a paper purporting to be a writ of summons &c., because said writ is not founded upon any cause of action filed, and has no legal existence, and should be stricken from the files of the court.”

The plaintiff moved for leave to amend her petition.

The court overruled the motion to amend, and sustained the motion “ to strike the writ from the files of the courtand plaintiff brought error.

*291Mr. Justice Scott

delivered the opinion of the court.

We have carefully examined the transcript in this case and have been unable to discover any imperfection in the petition or summons. On the contrary, the entire proceedings on the part of the plaintiff in error appear to have been taken with entire accuracy. The court below therefore erred in its action, and the judgment must be reversed and the cause remanded to be proceeded with.