
    *James Hamilton against John Frederick and Nathan Harvey, partners, under the firm of Frederick and Harvey.
    
      Capias issued against two partners, one is taken, and the other returned N. E. I. A general narr. is filed against both as on a joint contract, pleas in bar put in, the suit referred and exception taken to the report on its merits, the informality in the declaration is cured.
    Appeal from the Circuit Court of Dauphin county.
    It appeared by the record, that a capias in case had issued against both defendants, returnable to March term 1803, upon which the sheriff had returned C. C. B. B. as to Frederick, and N. E. I. as to Harvey.
    Mr. Fisher appeared for Frederick. The action being removed to the Circuit Court, a jury was sworn therein November 3d 1803. A juror was afterwards withdrawn by consent, and the matters in variance were referred to three persons, who reported 73I. os. 8d. in favour of the plaintiff. Exceptions were filed to the report, which upon a hearing, were overruled by Mr. Justice Brackenridge, and judgment entered on the report.
    The defendant appealed therefrom.
    The plaintiff had filed his declaration on a general indebita-tus assu-mpsit for goods sold and delivered, and also on a quantum valebant, against both defendants, without taking any notice of the sheriff’s return.
    Mr. Duncan, for the defendants,
    insisted, that this was a joint contract, and declared upon as such. The declaration is totally defective, in omitting the sheriff’s return as to Harvey, and no judgment can be entered against one who has neither been served with process, nor has voluntarily appeared. Barnes 246.
    Mr. Hopkins, pro quer.
    
    It does not appear that any judgment has been entered against Harvey. It is admitted there is an informality in the declaration ; but it is contended, that it is cured by the pleas in bar, the report and the exceptions taken thereto on its merits. 1 Dali. 461-2. The plea of payment admits the declaration to be good. 10 Vin. 3, pi. 12.
    The utmost that can be said here, is, that the plaintiff has stated his demand in his declaration in a defective manner.
   And of this opinion were the court, who directed a confirma tion of the judgment in the Circuit Court.  