Stone vs. Bennett et al., 4 Ark. 71

By the Court, Ringo, C. J. The three first causes of demurrer specially assigned, are: 1st, That there is a variance between the writ and declaration in the names of the plaintiffs; 2d, There is a variance between the writ and declaration, in the capacity in which the plaintiffs sue; 3d, There is a variance between the writ and declaration, in the names of the assignees. These objections, if tme, are no bar to the action; and if they are available for any purpose, it can only be in abatement of the suit.

And notwithstanding, anciently, after oyei'of the original writ, advantage thereof could be taken, either by plea in abatement, demurrer, motion in arrest of judgment, or writ of error, they would always, as we apprehend, have been waived by the interposition of a defence in bar of the action. Such is the effect of inverting, or failing to observe, the established order of pleading, as has been repeatedly ruled by this Court. See Dyer vs. Hatch, 1 Art. Rep. 339. Clark vs. Gibson, 2 ib. 109. Webb vs. Jones & Prescott, ib. 330.

It is also well settled, that a general demurrer constitutes in law such defence; and, therefore, as no special demurrer can be filed, and nothing which is only ground of special demurrer at common law can now be specially assigned as cause of demurrer, we entertain no doubt that the Court below, as to these causes, decided correctly. The fourth and fifth causes are: 1st, That there is a variance between the note given on oyer and that described in the declaration; 2d, There is a variance between the assignments on the note given on oyer, and the assignments as stated in the declaration.

Upon comparing the note and assignments copied in th<itranscript of the record before us, with the allegations in the declaration, no substantial variance between them is perceived. Besides, it may be proper to remark, that oyer of the assignments was neither prayed nor granted; and, therefore, although they are copied in the transcript, they cannot be regarded as comprising a part of the record. The sixth cause of demurrer specially assigned, is, that there is no averment in the declaration, that the defendant, Stone, had notice of the assignments of the note mentioned in the declaration.

It is very clear, that notice of the assignment is not essential to the legal right of the assignees to maintain their action against the maker of the instrument; and, therefore, it is unnecessary to allege such»notice in the declaration, Rev. St. Ark. 107. The seventh and eighth objections are: 1st, That no legal cause of action is set forth in the declaration; 2d, That the breach assigned is not as broad as the contract stated in the declaration, and that there is no venue to all the material allegations.

The note and assignments are not only substantially-, but specially and correctly, set forth, so as to show in the defendants in error an undoubted legal title to the instrument sued on, and also a right of action in their own names, by virtue of the provisions contained in the 11th

chapter Revised Statutes, above cited. The breach negatives the payment of the debt demanded to the original payee or either of the assignees, and there is a proper venue distinctly laid to every material allegation in the declaration; yet, if there was not, such’ objection could not be taken advantage of on general demurrer; and;, therefore, wc are of the opinion that there is no error in the judgment, of the Circuit Court, in overruling said demurrer. The remaining objection, that the judgment is given for too much-damages, is not sustained-by the record. Judgment affirmed.