Whitlock v. Kirkwood , 16 Ark. 488 ( 1855 )

Mr. Justice "WalKeb

delivered the opinion of the Court.

This was an action of debt upon a promissory note, dated 27th of May, 1853, due twelve months after date, for $537 91, and made payable at the office of plaintiffs in New York, where made, “with current rate of exchange on New York.”

Farnham, who described himself as agent of the plaintiffs, swcars that the debt is due, payable on the 27th May, 1854, with interest from due, and the current exchange on New York, between the place where the same may be paid and that city: that defendant is about to remove himself and his goods and effects out of this State, as affiant was informed, by credible persons having ample opportunities of knowing the facts, and his intentions, and as he has good reason to believe, and does verily believe.

The condition of the attachment bond described the action to be “for a debt, as sworn to, of $537 91, with current rates of exchange on New York.”

The writ of attachment commanded the sheriff to summon the defendant to appear and answer an action of debt for $537 91, with the current rate of exchange thereon, between said county of Lawrence and the City of New York in favor of said city.”

This may suffice to show the grounds of variance relied upon by the defendant, who filed two pleas in abatement.

In the first plea, the variance is averred to consist in this: that the plaintiff claims $537 91, with interest and current exchange dt Weio York, in his affidavit; and in the writ of attachment, the sheriff is commanded to attach, &c., to satisfy the debt of $537 91, with interest and costs, but is silent as to exchange.

The second plea is for an alleged variance between the affidavit for an attachment, and the attachment bond, and consists in this: that in the affidavit interest is claimed — in the bond it is omitted.

With regard to the first plea, it may suffice to say, that although true, that the omission is made in that part of the writ directing the sheriff to attach, &c., not in the after part of the writ in which the sheriff is commanded to summon the defendant to answer the complaint, there is no variance whatever, and the demurrer should have been sustained.

The ground of objection set up in the second plea, is wholly untenable. It is unnecessary, however, to discuss the questions argued by the counsel, or refer to the decisious upon which they rely, because in a recent case (Ellis vs. Cossitt et al., 14 Ark. 222,) the same questions were raised, and the same cases cited and relied upon, and it was there held, that defects of this class were not sufficient to abate the writ.

The Circuit Court erred in overruling the plaintiff’s demurrer to the defendants’ pleas in abatement; and for this error, the judgment must be reversed, and the cause remanded for further proceedings therein to be had according to law.