The Bank of the State vs. Hubbard, 4 Ark. 419

By the Court, Dickinson, 3. It is certainly true, as a general rule, , that the contract sued on, need only be set out according to its legal tenor and effect; but, if the plaintiff elects to give a more precise and particular description of the instrument, he must set it out with accuracy. Having elected to set out the character in which the party contracted, the description must correspond with the obligation produced upon oyer.

Chitty, in his Pleading, 1 vol., 304, lays it down as a general rule, that a trivial variance in setting out a contract, a record, or any written instrument, is fatal; because it does not happen that the contract in evidence is the same upon which he declares, it being matter of descriptiqn. And this rule is said to hold good, whether it be upon the contract itself, or upon some collateral matter. 10 J. R. 418. 5 Cond. R. 680. The principle establishedaby these authorities clearly show, that there was a variance between the description of the writing sued on, and the one given- upon oyer.

The defendant being described as principal, he cannot be charged, as security. We see no error in the proceedings of the Circuit Court. Judgment affirmed.