7 Mo. 298 | Mo. | 1842
Opinion of the Court, delivered By
J. B, & P, G, Camden, the plaintiff's- below, sued Freeman & Snowden by petition in debt, on a note executed by them, in which the plaintiff's below are described as survi-partners of J. B. & M. Camden,.& co. The plaintiff’s commenced their petition thus, “John B. Camden and Peter G, Camden plaintiffs &c,” omitting the des-crffR°n °f their persons contained in the body of the note; the writ requires the defendant below, to appear and answer the complaint of John B. & Peter G. Camden, surviving
It is not easy to see the variance alleged, but if this matter could be tortured into one, it has been held by this court that a variance between the writ and declaration, if it could After the court, be taken advantage of at all, could not be reached by a ° motion to quash. See Jones v. Cox & Others, 7 vol. Mo. Rep. Another error assigned, is the overruling the demurrer, and the refusal to arrest the judgment. The reasons shown in arrest of the judgment, were the same as those offered in support of the demurrer, has deliberately expressed its judgment upon a demurrer, the same matter is never allowed to be urged in arrest judgment. The alleged cause of demurrer, was tha't the plaintiffs were described in the body of the instrument sued on, as surviving partners of J. B. & M. Camden & Co., and that they declared by the name of John B. Camden and Peter G. Camden, omitting the description given them by the note.. This is the same question presented by the motion to quash. This omission is not material. The word “Surviving partners of J. B. & M. Camden & Co.,” were a descriptio personarum, which has always been held unnecessary to insert in a declaration/
Judgment affirmed.