Bank of Arkansas v. Clark, 2 Ark. 375 (1840)

Bank of the State of Arkansas against James Clark, and others.

Pike, for plaintiff in error :

Pike, for plaintiff in error:

Ringo, Chief Justice,

delivered the opinion of the Court:

The only question presented by the record is whether the declara­tion is sufficient in law; or was the demurrer thereto rightly sustained! The declaration is in point of form strictly and technically right, and we are at a loss to conceive the ground upon which it was ad­judged insufficient. The pleader, it is true, in describing the obliga­tion of the defendants, employed language somewhat different from that usually found in the ancient forms and precedents, but the lan­guage used is.literally the language of the contract, and imports an an obligation as effective in law as that usually adopted in the prece­dents, and if it could ever have been objectionable, as matter of form,, it must be conceded that our statute has effectually cured the objec­tion by declaring that “ no person shall be prejudiced by neglect of the ancient forms and terms in pleading; so that the matter fully ap­pear in the process, declaration, petition, statement,or other pleading;” and requiring the parties to express in every demurrer the defect or imperfection of the pleading demurred to; while they are prohibited, by the same statute, from setting out therein any defect or imperfec­tion “that would be cause of special demurrer at common law;” and the court is expressly required to amend every such defect or other imperfection in the pleading “ other than those which the party de­murring shall express in his demurrer.” Rev. St. Ark., Ch. 116, S. 59, 60, 61, p. 627-8. The contract, as set forth in the declaration, contains no stipulation for the payment of interest, and therefore, as the interest thereon is prescribed and given by a general law, and can be regarded only as a legal consequence of the failure to pay the debt or discharge the obligation' at maturity, or on the day when it became due, and payable according to law, or the express agree­ment of the parties, a special averment in relation thereto is unneces­sary, and must be regarded as surplusage: because the facts which entitle the party to interest being shewn, the court is bound to know, judicially, what the legal interest is, and pronounce judgment for ifc if the plaintiff obtains judgment for the debt demanded»