Blevins v. Blevins

4 Ark. 441

• Court: Supreme Court of Arkansas
• Decided: July 15, 1842
• Status: Published

Opinion

By the Court,

Dickinson, J.

It has been ruled, in this Court, that petition and summons will only lie for the direct payment of money. This is certainly not a note of that character.' The whole of the agreement must be taken and construed together, for it is one entire contract. It is simply an acknowledgment of a debt due, to be paid out of a particular fund, placed in the hands of the creditor for that purpose. The legal definition of a note is, “ the agreement for the direct payment of money.” “ The payment,” says Chitty on Bills, at page 152, “ must be absolute, and not contingent, either as to the amount, credit, fund, or person.” The principle here stated decides the point before this Court. The fund being contingent, out of which the debt was to be paid, the plaintiff had no right of recovery, unless he averred and showed that the fund had failed, or was inadequate to the payment. The demurrer to the declaration was, therefore, improperly overruled; and, for this reason, the judgment .must be reversed, with costs.