{ "id": 1848230, "name": "Peter Dudley, Executor, against Grandison C. Smith, and others", "name_abbreviation": "Dudley v. Smith", "decision_date": "1840-07", "docket_number": "", "first_page": "365", "last_page": "369", "citations": [ { "type": "official", "cite": "2 Ark. 365" } ], "court": { "name_abbreviation": "Ark.", "id": 8808, "name": "Arkansas Supreme Court" }, "jurisdiction": { "id": 34, "name_long": "Arkansas", "name": "Ark." }, "cites_to": [ { "cite": "5 Bibb, 444", "category": "reporters:state", "reporter": "Bibb", "opinion_index": -1 }, { "cite": "4 Wend. 411", "category": "reporters:state", "reporter": "Wend.", "case_ids": [ 2005416 ], "opinion_index": -1, "case_paths": [ "/wend/4/0411-01" ] }, { "cite": "1 Wend. 217", "category": "reporters:state", "reporter": "Wend.", "case_ids": [ 2003262 ], "opinion_index": -1, "case_paths": [ "/wend/1/0217-01" ] } ], "analysis": { "cardinality": 507, "char_count": 9647, "ocr_confidence": 0.459, "pagerank": { "raw": 8.283159945918396e-08, "percentile": 0.4791034149095179 }, "sha256": "ff274f1c7d392f28e25ce3e58ba8be2c572d7f0394560095244ffa1de3f65031", "simhash": "1:beaee541b9598ec6", "word_count": 1692 }, "last_updated": "2023-07-14T21:29:25.616226+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [], "parties": [ "Peter Dudley, Executor, against Grandison C. Smith, and others." ], "opinions": [ { "text": "Ringo, Chief Justice,\ndelivered the opinion of the court:\nThe petition literally follows the form prescribed by the statute; and the obligation therein set forth is a literal copy of that given as oyer: there is therefore no variance or misdescription of the writing' obligatory sued on, and according to the principle recognized and established by this court in the case of Webb vs. Prescott and Jones, decided at the present term, there is no necessity for any formal averment in the petition that the defendant sealed the instrument, or subscribed it by any particular name or description, where the whole instrument, including the signatures and'seal, is literally copied into the petition, because the statement in the petition that the plaintiff is the legal holder of a bond against the defendants to the following effect, is in such case equivalent to such averment. The judgment is therefore reversed.", "type": "majority", "author": "Ringo, Chief Justice," } ], "attorneys": [ "Pike and Sutton, for plaintiff in error:", "TeapnalIj & Cocke, Contra:" ], "corrections": "", "head_matter": "Peter Dudley, Executor, against Grandison C. Smith, and others.\nError to Chicot Circuit Court.\nIn a suit by petitilion in debt, where the petition follows the Statute, by stating the-plaintiff to be the legal holder of a note or bond against A. B., to the following effect; and sets out in haec verba, a note or bond signed by the defendant by the initials of his Christian name, the petition Is good.\nThe averments in such petition are equivalent to a statement that the defendant signed the note or bond by a particular signature.\nAbsent, Dickinson, J.\nPeter Dudley, assignee of Theobald & Bain, and executor of Isham Talbot, deceased, stated by his petition under the statute \u201cthat he is, as the assignee of Theobald & Bain, and executor of Isham Talbot, deceased, the legal holder of a bond against the defendants Grandison C. Smith, George W. C. Graves, and Claiborne W. Smith, executed to said Theobald & Bain, and by them assigned to the plaintiff, executor of Isham Talbot, deceased, to the following effect:\n$8,000. &c. Signed, G. S. Smith, [seal.]\nG. W. C. Graves, [seal.]\nC. W. Smith, [seal.]\nThe defendants demurred to the petition for variance between it and the bond given on oyer \u2014 and the ground of demurrer was that the petition did not show that the defendants signed the bond by their several descriptions of G. C. Smith, \u00e1re. The court sustained the demurrer on that ground, and rendered final judgment against the plaintiff.\nPike and Sutton, for plaintiff in error:\nWe have been at great loss to imagine on what authority the court bolow decided the demurrer to be well taken, for we have not been able to find a single case to sustain the decision. It must have been decided the doctrine laid down, and thus stated Lawes, in his work on pleadings: \u201c If a bill or note be drawn in one name, and be declared upon as drawn in another, the variance will be fatal, if the action be not brought against the drawer, but flic acceptor, or one of the endorsers; for, in such cases, the name is part of the description of the written instrument, and the defendant ..has no opportunity of pleading a misnomer in abatement.\u201d And Whilwellvs. Bennett, 3 Bos. and Pul. 559, is instanced, where in an action against the acceptor of a bill drawn by one Gouch, the drawer was \u00bf[escribed as Crouch, where the variance was held fatal, upon the trial. But the general rule has never been shaken, that if the defendant be misnamed, he must plead it in abatement. Lawes, 308, 309; except where the misnomer amounts to a variance between the instrument, as declared on, and the same as given in evidence \u2014 as where, on a note by the form of Austin, Strobell, and Shirtleif, one of the firm was named in the declaration Robert Strobell, and it was proved uppn the trial that his name was Daniel Stobell, the plaintiff was non-suited. Gordon vs. Austin, 4 T. R. 611.\nThe precise question here presented to the court, has,it is believed, never been determined, as in all probability, the exact objection here made, was never before taken.\nBut in Wardell et al. vs. Pinney, 1 Wend. 217, Owen Wardell, Samuel Van Bur\u00e9n, and Charles Wardell, brought suit upon a promissory note, made by Pinney, and averred in their declaration, that by the note the defendant promised to pay to the order of said plaintiffs, &c. The note, when produced was found payable fo Wardell, Van Bur\u00e9n dp Co.; and the plaintiffs proved that they composed a firm under that name, though nothing was said as to the firm in the declaration. ' The court said that if the declaration had averred that -the note was given the plaintiffs by the description of Wardell, Van Bur\u00e9n & Co., there would have been no ground of objection: and they then determined, that there was surely no variance: that the plaintiffs were shown to be known-by the description of the payees in the note, and therefore the plaintiffs had judgment: and they rested upon Wood vs. Bulkley, 43 J. R. 595, where a note signed Christ. Bulkley was held to prove an averment of a note signed Christopher Bulkley, it being proved that the defendant usually abbreviated his name in that manner.\nIn Jones el al., vs. Mars et., al. 2 Camp. 305, the endorsees sued the drawers of a bill of exchange, and stated in the declaration that' they made it, \u201c their own proper hands being thereunto subscribed.\u201d The bill, when produced on the trial, was signed by the name of the defendant\u2019s firm, \u201cMars \u00e9f Co.;\u201d and Lord SiLEKiBOsouaH refused to nonsuit the plaintiff, either on that ground, or because the bill was stated in the declaration to \u201c for value received in leather,\u201d and on its face it read \u201c for value delivered in leather.\u201d\nThis case was quoted and relied on as sound law, in Mach vs. J. S. and J. A. Spencer, 4 Wend. 411. The declaration there stated that the defendants made^ their certain promissory note in writing, bearing date, &c., and then and there delivered, &c., and thereby then and there promised to pay, &c. The note when produced on \u25a0 the general issue, was found to be signed, \u201c J. S. 4<- J. A. Spencer;\u201d and proof was given that it was signed by one of the defendants, and that they were partners. The court decided that there was no variance between the declaration and the proof.\nTo sustain the judgment below, upon the grounds there assumed, would be a stretch of ultra-technical refinement which, we presume, will not obtain here. We do not believe that a single authority can he found, showing such a defect, if defect it be, ever to have been ground of demurrrer: and we believe that it is, in every, such case, entirely unnecessary to state that the defendant made the note, by his style, or description, or abreviation of W\u00abn. or Chas, or I. C,, or the like. We are not even required, under our law, to prove this fact at the trial, unless it is contested under oath.\nThe petition follows the statute strictly; and although we regard this whole matter of petition and summons as a useless and pernicious innovation on established forms, and calculated more frequently to thwart than forward the ends of justice; yet the petition here is sufficient under the law. It states that the plaintiff holds a bond against the defendants, executed to Theobald & Bain \u2014 and that is certainly equivalent to an averment that the defendants made, the note. At all events, when coupled with a copy of the note, it is all the averment, as to the execution of the note, which the law requires, and therefore sufficient. Moreover, even at common law, it was not necessary even to aver the signing of a bond:' to aver its sealing was sufficient.\nTeapnalIj & Cocke, Contra:\nThe rules requiring certainty in pleading apply with equal force and propriety to this statutory proceeding by petition and summons. And a variance which would be fatal (o a declaration, upon the same principles should be equally so to a petition. When suit is brought \u2022upon a bond for the direct payment of money, and the bond is relied upon as evidence to support the declaration, the slightest variance between the allegations and evidence, as to persons, dates, or.names, will sustain a demurrer. 3 Starkie, 1578,1587, and notes; Chit. 222.\nWhen a declaration charged the defendant as James Cook to have made his indenture, and produced a deed signed George Cook, the variance was held to bo fatal. May lesion vs. Palmerston, 2 Carr. Payne, 474; Hickman vs. Shetbolt, Dyer, 279; Hutchinson vs. Piper, 4 Taunt. 800.\nIn this case a similar difference exists. The plaintiff states that he holds a note against Grandison C. Smith, George W. C. Graves, and Claiborne Smith, and the note is signed G. C. Smith, G. W. C. Graves and C. Smith. There is no averment in lhe petition, or evidence in the record, that they are the same persons, and there is as. great a variance in this case as in the case cited above.\nIn the case of Dallam dp Castleman vs. Wilson, 4 Monroe, 109, which was an action by petition and summons; upon a demurrer for a variance, the court say, \u201cto charge Dallam by the name of Dillon, or Castleman, Dallam & Co., by the name of Castleman, Dillon & Co., it must be averred that they are the same firm. The variance between Dallam and Dillon is obvious. To make them mean the same person must be done by averment of a matter not apparent in the writing, but out of it, and essential to charge Castleman, Dallam & Co., by virtue of that writing.\u201d\nIt is not apparent on the face of the note, that they are the same persons, it should therfore according, to' the well settled principle illustrated in the above case,have been averred. And such an averment can properly be made in a petition and summons, as decided in the case of Rochester vs. Trotter, 5 Bibb, 444; Hensmen vs. Castleman Sf Co., 1 Monroe 211." }, "file_name": "0365-01", "first_page_order": 371, "last_page_order": 375 }