State Bank v. Arnold , 6 Ark. 347 ( 1850 )

Mr. Justice Walker

delivered the opinion of the Court.

In this case two points of variance between the allegation and proof are raised. The first has been settled at the present term of the court by the decision of The Bank vs. Magness et al. It is there held that the legal effect of the judgment by dismissal or non-suit, so far as the question before us is concerned, is the same; and consequently the alleged variance is immaterial.

The second ground of objection is that the replication states the judgment of non-suit to have been entered on the 7th, whilst the evidence offered shows a judgment rendered on the 6th of March, 1849; both dates of the same term. The particular day of the term on which the judgment was rendered is wholly immaterial. The whole term is but one day in contemplation of law. The record offered proved a judgment rendered at the same term as that set forth in the replication. And if the term in contemplation of law is held as one day, then the day set forth in the pleading and that shown in evidence, being of the same term, is in contemplation of law one day, and consequently there was no variance in this respect.

There being no other alleged variance between the allegation and proof, and we find none upon inspection of the record, we think the court erred in rejecting the evidence and finding the issue for the defendants.

Let the judgment be reversed.