Pitcher & Walters vs. Morrison & Morrison, 4 Ark. 74

By the Court, Ruígo, C. .1. The causes of demurrer, specially assigned, are: 1st, That the writ does not set out the .Christian names of the plaintiffs; and, 2d, There is a variance between the writ and declaration, in the names .of the plaintiffs, and the capacity in which they sue. These are unquestionably not objections to the merits, or in bar of the action; and, therefore, according to the principles acted upon by this Court, in the case of Stone vs. Bennett et al., just decided, could not be taken advantage of by general demurrer.

The breach assigned is not commensurate with the contract as stated in the declaration, and is therefore defective; but as no objection to the breach is specially assigned in the demurrer, we are bound to disregard or amend it. And inasmuch as the declaration shows a legal right in the appellants to demand and recover of the appellees the debt, without the conventional interest mentioned in the contract, the demurrer, according to the principles adjudged by this Court, in the case of Davies vs. Gibson, 2 Ark. Rep. 115, ought to have beep overruled.

We are therefore of the opinion that the Circuit Cour,t did err in sustaining the demurrer, and thereupon abating the writ. Judgment reversed.