Bonne v. Kay

5 Ark. 19

• Court: Supreme Court of Arkansas
• Decided: January 15, 1843
• Status: Published

Opinion

By the Court,

Paschal, J.

The errors assigned are, 1st, that the breach does not negative the payment to Greenfield, whose name appears in the declaration, but who is alleged to have been dead before the execution of the note. This is a singular fact in the history of the contract; nevertheless, in this case the law will infer that the contract was made as it was alleged it was intended to be made, with the living party alone. The declaration in this respect is inartificial, but we think the breach sufficiently broad for the instrument declared on.

The second error alleged is, that there is a variance between the instrument declared on and that given on oyer. The record shows that óyer was craved, but it nowhere appears that the instrument sued on was made a part of the record. It is true that an instrument or promissory note, suiting, in date and amount, is copied into the transcript sent upon to this Court; but this was filed a day after the craving-oyer and filing demurrer; and, as it is not brought upon the record “ by order of the Court, by agreement of counsel, by demurrer to evidence, by oyer, by bill of exceptions, or by special verdict,” it forms no part of the record. Lenox vs. Pike, 2 Ark. Rep. 14. When the plaintiff below craved oyer, if he desired to make the note declared -m a part of the record, he should have set it forth in. his demurrer.

Judgment affirmed.