#### Magruder vs. Slater.

Debt, by petition, on a bond, setting out the instrument, but calling it a note: Held, That calling it a note, was no ground of demurrer, when taken in connexion with the instrument itself set forth in the petition, and appearing to be a bond.

In setting out a bond, in debt by petition, it is not necessary to copy the dollar-mark and numerals representing the amount of the bond, in the margin; they constitute no part of the contract.

FTo plausible ground appearing for the appeal, damages awarded to appellee under Digest, eh. 127, sec. 40.

Appeal from. Independence Circuit Court.

Debt, by petition, as follows :

H To the Circuit Court of the County of Independence, at the March term thereof, A. D. 1850 :

Your petitioner, John A. Slater, the plaintiff in this cause, states that he is the legal owner of a note against the defendants William W. Ewbank and Charles B. Magruder, to the following effect:

! For value received, we, or either of us, promise to pay J. T. Fairchild, or order, the sum of two hundred dollars, in one year from the 1st day of January next, interest to commence on the 1st day of January next, at the rate of 10 per cent, per annum: In witness whereof, we have hereunto set our hands and seals. Batesville, July 23, 1847.

W. W. EWBANK, [Seal'.]

C. B. MAGRUDER, [Seal.]’

On which is the following endorsement in blank, ‘J. T. Fair-child ; ’ by virtue of which the plaintiff has become the owner thereof. Yet the debt remains unpaid; therefore he demands *172judgment for his debt, and damages for the detention thereof, together with his costs.” F. W. Dusiia, Ait.

Defendant Magruder craved oyer, and plaintiff filed the following as the instrument sued on ;

“For value rcc’d, we, or either of us, promise to pay J. T. Fairchild, or order, the sum of two hundred, dollars, in one year from the 1st day of January next, interest to commence on the 1st day of January next, at the rate of 10 per cent, per annum : In witness whereof, we have hereunto set our hands and seals. Batesville, July 23, 1847.

W, W. EWBANK, [Seal, j

0. B.

Endorsed — J. T. Fairchild.

Magruder then demurred to the petition on the following-grounds:

“1. That plaintiff, in his said petition, calls and describes the instrument sued on as a note, whereas on oyer granted it appears to be not a note, but a bond or specialty.

2. Plaintiff has omitted in said petition the dollar-mark and numerals appearing- on oyer as the preliminary part, of said instrument sued on.

3. Plaintiff has also misdescribed said instrument in his said petition in this, to wit: ‘for value received,’ &e., whereas, on oyer, it appears thus: ‘ for value redd.’’

4. Said plaintiff has not the legal interest in said instrument sued on.” Conway B, Alt.

Demurrer overruled, and final judgment for plaintiff, and appeal by Magruder.

Conwav B, for the appellant.

Fowler, for appellee,

suggested that, as the appeal was taken for delay, damages should be awarded.

*173Mr. Justice Walker

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.