70 SEMON ET AL. VS. HILL, AS ADMINISTRATOR. [7 SEMON ET AL. VS. HILL, AS ADMINISTRATOR. In declaring upon an instrument, according to its legal effect, which does iiot disclose upon its face the place of its execution, it is no variance to lay the venue in the county where the suit is brought, without a videlicet. The bond sued on is described in the declaration as executed by the defendant Semons and others: the bond given on oyer is signed by Semon and others— variance held fatal on demurrer—held further that Gravaier and Gravier were idem sonans. It was alleged in the declaration that one of the defendants signed the bond by his his name of Kindred Delk: the bond given on oyer was signed Kindred X mark Delk—held no variance. Writ of Error to the Circuit Court of Pulaski County. Action of debt, determined in the Pulaski circuit court, at the October term 1845, before CLENDENIN, judge. The declaration, in substance, fo]lows : "M. H. Hill, as administrator of the estate of John B. Gravier, deceased, complains of Henry E. D. Semons, Albert Haney and Kindred Delk of a plea that they render unto him as such administrator, the sum of $250, which from him they unjustly detained. For that reason the said defendants on the 20th day of Janu-ary, A. D. 1844, in the county of Pulaski, by their certain writing obligatory of that date, signed by their respective names of Henry E. D. Semons, Albert Haney, and Kindred Delk, and sealed with their seals, and now to the court here shown, promised they or either of them to pay to said plaintiff as such administrator, the sum above demanded, on or before the first day of January 1845, which time has elapsed: yet" &c.—then follows the usual breach, and a profert of plaintiff's letters of administration &c. Defendants craved oyer of the bond sued on, and plaintiff filed the following : "$250—On or before the first day of January, 1845, we or either
ARK.] SEMON ET AL. VS. HILL, AS ADMINISTRATOR. 71 of us promise to pay M. H. Hill, as administrator of the estate of John B. Gravaier deceased, the sum of two hundred and fifty dollars, value rec : witness our hands and seals; this 20th day of January 1844. HENRY E. D. SEMON. [L. s.] ALBERT HANEY. [L. s.] his KINDRED x DELK. [L. s.] " mark The defendants demurred to the declaration, and assigned for causes : 1st. Plaintiff has not sued in his christian and sur-name, as required by law : 2d. there is a variance between the writing sued on and that given on oyer, in this, the bond given on oyer is payable to Hill as adm'r of John B. Gravaier and not to John B. Gravier as alleged in the declaration : said bond does not appear to have been executed in Pulaski county as alleged : it is signed by Henry E. D. Semon and not Semons as alleged : and said bond is not signed by Kindred Delk by that style, as alleged, his but Kindred x Delk," &c. &c. mark The court overruled the demurrer, and, defendants declining to auswer over, rendered final judgment for plaintiff, and defendants brought error. CUMMINS, for the plaintiffs. It is deemed useless to refer to authorities to show that any material misdescription of the instrument sued on, is fatal on demurrer. We merely refer the court to the case of Hanly vs. The Real Estate Bank, 4 Ark. Rep. 598, and the authorities there cited on the part of plaintiff in that case. Upon mere inspection of the instrument given on oyer, it appears that it was not payable to M. H. Hill as adm'r of Gravier, as alleged in the declaration, but to Gravaier; an entirely different name, and one which could not be made to have the same sound in any language. The declaration, also, as matter of description, alleges the bond to have been executed in Pulaski county. This is also a fatal variance. The party might have alleged it under a videlicet, so as
72 SEMON ET AL. VS. FITLL, AS ADMIN/STRATOR. [7 to show it was not matter of description. But as it stands it is clearly fatal. See 1 Ch. Pl. As the authorities cited apply equally to all the causes of demur-rer, it is deemed useless to refer specially to each cause assigned. LINCOLN, contra. The demurrer ought to have been overruled, because the declaration set out the bond correctly according to its legal tenor and operation and not in haec verba. Dickerson vs. Morrison, Ark. R. p. 316 Vol. V. Irvin adra'r vs. Sebastian & Hanley, 1 English's R. 33. It is not necessary to set out the christian name in the declaration, for it is sufficient to set out the name as it appears in the bond sued on. Pitcher & Walters vs. Morrison & Morrison, Ark. Rep. Vol. 4, p. 74. Stone vs. Bennett et al. Ark. R. V. 4, p. 71. There is no legal variance in the declaration and the bond given on oyer. The name of John B. Gravier, and John B. Gravaier have the same sound. The name is a French name and the addition of the a after the v does not change the sound. 1 Chitty Pl. p. 244. The allegation in the declaration that the bond was executed in the county of Pulaski, was not descriptive of the bond, but made to give the court jurisdiction. 1 Chitty, p. 244. The variance alleged between the name of Semons and Semon is not such a variance as would authorize the court to sustain a demurrer. It is the addition of a letter that does not change the name. The declaration alleges that Kindred Delk signed the bond sued on in his respective name of Kindred Delk without alleging that he made his mark, as appears on the bond. In describing the bond according to its legal tenor and operation , it is not necessary to set out the mark, and there is no variance for the want of it. JoHNSON, C. J. The plaintiffs in error insist that the circuit court erred in ov , erruling their demurrer to the defendant's declaration. They hAve set down numerous causes of demurrer, many of which we consider so clearly bad as to require neither argument or authority. The record, in our conception, presents but two points
ARK.] SEMON ET AL. VS. HILL, AS ADMINISTRATOR. 73 for the consideration and decision of this court. 1st. Does the instrument sued upon and the one given on oyer vary in the name of the place where it is alleged to have been executed : and 2d. Do they vary . in the name of Semon, one of the parties to the contract. "Where a transitory matter has accrued abroad it may in general be stated to have taken place in any English county without 'noticing the place where it really happened, but if the real place abroad be stated, (which it has been supposed to be necessary when a deed or bill of exchange or other instrument bears date there) it should be shown under a scilicet, that it happened in an English county ; as for instance, " in Minorca, to wit, at Westminster in the county of Middlesex." See 1 C. P. 280, 281, and the authorities there cited. But in the case of Houriet and another vs. Morris, 3 Campb. Lord Ellenborough held that it was necessary to state the place where a foreign bill of exchange was drawn, and that if dated at Paris it might be alleged in the declaration to have been made in London, and there would be no variance. If to lay the venue at a place different from the one specified on the face of the instrument would not occasion a variance, for a much stronger reason would there be none where the instrument discloses no venue whatever. The defendant in error did not attempt in his declaration to set out his cause of action in haec verba, but only according to its legal effect. We do not conceive that the court below erred in overruling this cause of demurrer. The next question is whether the declaration correctly describes the name of Semon, one of the parties to the contract. It is contended by the defendant in error that the addition of the letter "s" to the word Semon does not occasion any material variance. In all cases where words differ in the letters, the sound is the criterion by which to determine their identity. That the party who made the contract and the one sued are different as respects the letters composing their respective names is too clear to admit of a doubt. The question then to be determined is whether they are the same in sound. lf the final s in our language were wholly silent as is the case in many others, there would be much force in
74 [7 the argument, but such is not the fact, but on the contrary its sound is as full and as distinct as that of any other letter preceding it. If instead of the final "s" alone the pleader had added "ds,'' the sound would have been the same, and we presume it would not be urged for an instant that the addition of those two letters would not have caused a sound totally different from the name as contained in the contract entered into by the parties. We think it clear therefore that there is a manifest variance in this particular between the instrument as described in the declaration and the one given on oyer, and for this cause the judgment of the circuit court ought to be reversed. Judgment reversed.
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