OF THE STATE OF ARKANSAS. 131 LITTLE SAMUEL ESTILL against BENJAMIN BAILEY.
ROCK, July, 1838. ERROR to Chico?! Circuit Court. ESTILL vs.
BAILEY; A writ issued since the admission of Arkansas into the Union, is void if it do not run in the name of the State. After a reversal on thip ground, thc plaintiff' in error will be considered as regularly before the Court below, and must appear and defenkas if he had been served with valid process. This was an action of debt brought in the Court below by Bailey against Estill, and a writ of summons issued, commencing as follows: "STATE OF ARKANSAS, The United States of Smerica, "COUNTY - CHICOT. To the Sheriff of Chicot county—GnEETING:" At the return term, the defendant below appeared, and moved to "dismiss the writ, for defects and informalities on its face." This motion was overruled by the Court, and thereupon the defendant below permitted judgment to go against him by default, and brought his writ of error to reverse the judgment for error in the overruling of the motion to dismiss. The writ original borc date February 20, 1837. TRAPNALL and COCKE, for the plaintiff in error: The Constitution of the State requires that all writs should run in the name of the State of Arkansas. This writ does not run in the name of the State of'Arkansas, but in the name of the United States, and therefore the writ should have been quashed. The motion is to dismiss the suit. The writ is the commencement of the suit, and thc foundation upon which it rests. If the writ be void, of course there is no suit; and therefore the motion to dismiss the suit for the want of a sufficient writ is correct. The technical wording of the motion is to set asidc the proceeding, which is the same thing. See 6 Mon. 560; '2. J. R. 190, Bunn v. Thomas ; 2 Ld. Raym. 775; 4 J. R. 309, Bank v. Bernard ; 5 J. R. 233, Merrill v. Wagner ; 1 Tidd 182, 188, 192; Gould's Pl. 27. FOWLER, Contra: In this case the plaintiff relies on a single error assigned, which supposed error, the defendant contends, does not exist in the record. The defendant admits that the writ should run in the name of " The State of Arkansas," and contends that the writ in this case does. The words "The United States of America" in the commencement, are but surplusage, and cannot vitiate, nor are they re-
_ CASESN Tit% SUM= COURT 2" 714; Welt, ; FFd to the words "Me State (pf iniirons*" Which me also wed 1133S. in conformity vitt tise State Contitation. TIme tbaAo plsrases may wel l E nna, &Ind MogetIsen. ff ksu1kl fist discrottacssamord: sAaptrar, lit is also inSifted that tire evfierreanrc E g ill tffice Comet below; timed tam inter: g ladly in the writ, if -amy esi g ted. -• • Atte, deTwored khe zainieR (or Ole t ' o . net:: . Mil " s case was an action (of (delbt uhtTby,Pfoicasska. Brag 4igaill t_ & A ral :el Estarin alt nip * ty.r.di . t Ttr.defenilaat tOThey IIITMEta die coutt distnissilseFsciit; lissittlse scinii,on was cverrede'd, an4 judgment entered tap iagais , sSt thins illy delault: o 'reverse tette judgment, itte Ims seta cai ins'wait cif error., and mew proseecites it an mut. nem is hat cm pint iraised lby dre mecca zetithe;as4ignment cor error; =a that isas been Ififlysileoided im dse case (of Ganda vs. EuSkezdiarl. See I 'Pikes .14. SO, s, The wait bears (date fon ' the 20tis ieff .relsramy„, 18374 and it suns Mese scame4 the United States cti' America. St.. was issued áne the adniission Ailikarrqn into The Union; and slif comma await have wan in dm manse aff State; for by dy e 4h' Se-dIiionjfattidle VIL cif die Corriti. 1701, • a a ilikat 44 MIN and carer recess 441 atutinhe =Mt st‘f fit Stateoff Aikansas.'" ' t Amidas tliis writ does mot, iit is dam:dare ma l fi and will, and tette judgment 'below Ima g t ihestevtersed Wit& coAs. . oitas tIthe plaintiff in elm . Asas voluntatily made Mats& a pat ttj I to tile wil b t thymaSpeariscg and prostsentingIliMs wsit.; Ise mad inew coniideredassteguladi before dy e omit helm ;miff Ire Ind teen (Ay :sewed Witis a valid jpincess to ;wear at idle term 4o vadidh tilt cause ,wasirtiturnalle,. 'The case mdusit &crave evcmaied Ito iih r e Minot Circuit Court, to Itrepmeeeded tlaerteinagteealky
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