
    Ellett v. Britton.
    It is error to render judgment by default where there is an answer filed which is brought to the notice of the court, although the answer may not have been filed on or before the fourth day of the term.
    words respecting the intended effect of payment are not inconsistent with the character of a promissory note.
    The court cannot know, iri the absence of an allegation and proof to that effect, that a place mentioned in the date of a promissory note is beyond the limits of this State.
    Error from Bowie. This suit was brought upon the promissory note of the plaintiff in error and defendant below as follows:
    “Washington, March 31,1845.
    “ On the 1st day of June nest I promise to pay to Benjamin L. Britton or order one hundred and seventy-five dollars for value received, which when paid will he in full of a judgment obtained by W. IV. Williams in the Ilemp-stead Coipity Court against A. K. Elliott, on the Sth October, 1841.”
    (Signed) “William Elliott.”
    The answer of the defendant was filed on the fifth day of the term, but before the calliug of the cause. When the cause was called on that day the court disregarded tlie answer, because not filed on a previous day, and gave judgment by default in favor of the plaintiff for the principal sum specified in tiie note and interest. The defendant brought a writ of error.
    The grounds of error relied on were—
    1st. That the court gave judgment by default, notwithstanding the answer.
    2d. That the plaintiff cannot maintain the action upon tlie nóte sued on as the promissory note of the defendant.
    3d. That the note sued on was given in the State of Arkansas, and there being no averment in the petition of the interest allowed by law in that State no interest can be recovered upon tha note.
    
      J. W. Ellett, for plaintiff in error.
    & M. Morgan, for defendant in error.
   Wheeler, J.

The court erred in giving judgment by default when there was an answer in which was brought to the knowledge of the court. The case of Moore v. Janes, just decided, disposes of this ease upon the first ground of error assigned.

Tlie remaining objections to the judgment are not well taken. The note sued on is the promissory note of the defendant, upon which the action may well he maintained, and the stipulation embraced in it respecting the intended effect of its payment does not change the nature of the undertaking of the maker or affect the plaintiff’s right of action.

Tlie last objection taken to the judgment is not supported by the record. We cannot judicially know that Washington is in the State of Arkansas or that it is not in tills State, and it nowhere appears of record that the note sued on was made in that or any other foreign State.

Tlie judgment is reversed and the cause remanded for further proceedings.

Judgment reversed.  