
    Gratz against Phillips and others, Executors of Simon.
    Saturday, April 1st.
    Amendment of a declaration in account render permitted, by adding to a count which charged the defendants' testator as bailiff and receiver of the plaintiff, a count charging him as bailiff &c. of the plaintiff as surviving partner of A. although the writ corresponded with the first count.
    A CCOUNT render against the executors of Simon, wh~ was stated by the writ to have been the bailiff and receiv~ er of Michael Gràtz. Pleas, never bailiff or receiver, and mliv accounted.
    Raule on a former day obtained a rule to shew cause why the declaration should not be amended by inserting a count in which the plaintiff was described as ~surviving partner, and his interest as having been held by him jointly with a certain Barnard Gratz deceased; and now in support of the rule, he ci• ted Slipper v. Stid~~tone , Hancock v. Hayman , French v. Andrade , and Ditchburn v. Spracklin .
    Phillzps contra, urged that the new count would be a vari~ ance from the writ, and would put the defendants to the neces sity of meeting a different allegation from that which they came prepared to encounter.
    But the court without difficulty made the rule absolute; observing, in answer to the last suggestion of Phillips, that a continuance would be granted if the defendants were in danger of a surprise.
    Rule absolute.
    
    
      
       The reporter has been favoured by Mr. Rawle with a short note of the case of Jennings v. Cox executor of Gayworth, decided before Shipeen President, in 1789, in which a variance between the declaration and the writ was held by our practice to be immaterial.
      The defendant was summoned as the executor of Gctyviorth, and the declaration charged him accordingly; to which he pleaded ne ungues executor. The phuisbs1”' -withdrew his first declaration, and filed another charging the defendant as executor of the executor of Gayimrth. The defendant then craved oyer of the writ, aaid pleaded the variance between the writ and the count, in abatement. But on argument, the court overruled the plea in abatement and :s yarded a respondeos ouster.
      
    
    
      
      
        5 D.&JS. 493.
    
    
      
      
         3 X>. & JE. 433.
    
    
      
       6 D.CrE. 582.
    
    
      
       5 EsJ). 31.
    
     