CUMMINS VS. WOODRUFF. 15 CUMMINS VS. WOODRUFF. At instrakeent with the word seat surrounded by a scrawl, at the end of tbe signs tare, Is a sealed instrument, though there is no "in testimonium" clause. An Instrument of which oyer is craved, Is made part of the record , by being tlINI without it being made a part of any pleading. Though a bond is declared on as a promissory note, yet If the defendant. afte7 ay.n. eraved ...tnd allowed, does not demur for the variance, and judgment goes Li* default, tbe valiance Ls no ground of error.
itEs.11 Cum.miws vs. WOODRUFF. 117 ? .. 1.1Ifi was a.n action of debt. determined, in the Pu/add eircatf C .7ourt. nAlay. 1842, before the lion. JOHN J. CLI:NerNIN, one of the circuit judges. Woodruff sued McCurdy, Gilson, and Cum.mins, declaring on one bond and one note. Cummins craved oyer, which was gram.- ed by filing two instruments, each with the word "seal" surrounded by a . sera-M, opposite each signature—one linder hands and seals," and the other "under our hands." Discontinued as to McCurdy and Gilson, who were not served, and judo-ment nil dicit as to Cummins, as on two bonds. The case came up on error. The case was argued here by TV. & E. Cummins, wh.o insisted that the variance between the instrument declared upon in one Court, and these given on oyer, was fatal en error; and by Ashley & Watkins, contra. By the Court, PASCHAL, J. The instrument declared on as a promissory note is a writing obligatory, according to the doctrine settled in Underwood vs. Jeffries, 1 Ark. Rep. 108, and Bertrand vs. Byrd, 4 Ark. 195. The instrument was made a part of the record by filing. the original, WA settled by this Court in the case of Hanly vs. Reas Estate Bank. 4 Ark. Rep. 598, without making it any part of the pleading. The variance would, therefore, have been fatal, had the defendant demurred to the declaration for the variance between the count and the writing given ou oyer. The only question, therefore, presented for the determination of the Court is, whether the defendant should be permited to bring the instrument on the record by oyer„ then suffer judgment. to pass nil dicit, and raise the objection for the first time by error, in this Court. In the case of the Auditor vs. Woodruff and others, 2 Ark. Rep. 73, this Court field that, "where, in debt on bond, the copy of the bond given on oyer, as it appears in the transcript of the record, shows a contract simply sianed with the names of the defendants, but rithout any seal or scrawl by way of seal affixed to them; though ovc the names the words "witness our hands and seals" are used, the Iry drument,given on oyer appears not to he a bond, and is variant from fikst sued on." Oyer granted is part of the previous pleading, art6
118 the plaintiff is *Pound by it as long as it remains of record in the case, even though it may have been improperly or unnecessarily granted, and the defendants can avail themselves of any defect or objection manifest upon, or produced by it. Where oyer of the instrument was given; it bcame a part of the pleading; and the only legal way known to us of objecting to the instrument, would have been by demurring to the declaration for such variance, and specially pointing out the objection. The declaration would then have been .amendable on such terms as the Court would have deemed just. But the defendant, having failed to point out the variance, he consented to the instrument being read in evidence, although misdescribed. Having failed to take this objection at the proper time, we think this case within the reasoning of the rule settled in this Court in the case of Martin vs. Van Horn,' ante, and cases there cited. A different rule would be contrary to the reason and spirit of our liberal statutes of jeofails. The text of the reporter in the case of the Auditor vs. Woodruff et 'at .. says: "Such a variance is fatal on demurrer or error ;. " but that re-. marl: is not warranted by the decision of the Court. It is too late to present the objection on error, when-the party had passed over the proper time. 3 ad gm ent affirmed.
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