Hicks v. Vann

Decided July 15, 1842

Supreme Court of Arkansas · decided 1842-07-15

This was an action of assumpsit, tried in the Phillips Circuit Court, in June, 1842, before the Hon. John C. P. Toleeson, one of the circuit judges. The declaration contained three counts. In the first and second, Vann sued Hicks, as the endorser of a bond by a third person, payable to Hicks or order. The first count averred no demand of payment on the obligor, or notice, nor any excuse therefor.

Decided 1842-07-15

¶1By the Court,

Dickinson, J.

¶2It is clear, that the first count is defective, because it does not aver demand and notice, which are necessary to fix the assignor’s liability, unless he shows a sufficient legal excuse to supersede the necessity of this averment. This is not done. The judgment overruling the demurrer to this count is, therefore, wrong.

¶3The issue of non-assumpsit was not disposed of, and in this there is also error. If there is a question of law presented, or an issue of fact, in both cases it is the duty of the court fo have these points disposed of. If it is purely a question of law, it should be decided by the court: if of fact, by a jury, if required. The court ought not to proceed with the case, until all the issues raised upon the record are determined.

¶4Judgmeni reversed.