
    Elijah Owens, jun. against Morehouse.
    If the defendant peai-6he cannot afterwards, in rarg t°dro ad.°" vantage of a va. fiance between the declaration and process. Want of an averment in a deafter judgment he intended to plied by proof.
    BY the return to the certiorari in this cause, it apPearech that, on the 23d of April, 1804, the justice issued a summons in behalf of Morehouse, in a plea of trespass on the case, against the present plaintiff, Elijah Owens, Sen. and Daniel Owens, to appear on the 4th of May fol- , , , , , , lowing ; and that the summons was returned as served on. the 28th of April, by reading to each of them. On the re-r i j o turn day, Owens, sen. appeared, and Morehouse declared °R'cdnst Owens, jun. in assumpsit for work and labour, and Owens, sen. pleaded thereto the general issue, and that he and Daniel Oxvens were not in partnership with Owens, jitn. After hearing the proofs and allegations of the parties present, the justice gave judgment against Owens, jun. and held that the other two defendants were not in partnership with him.
    This case was submitted without argument.’ :
   Per Curiam.

The only objections worth mentioning to this return are, that the process was joint against three, and the declaration against the present plaintiff alone, and that the declaration wants an averment that the work was actually performed.

The answer to these is, that the defendant, by not appear» ins, cannot now make any objection to the variance between. ° .... - . the process and the declaration, and that the avermentrequired would, after judgment be intended to have been sup-J ° plied by the proof.

Judgment affirmed.  