By the court.

delivering the opinion.

[1.] The declaration does not vary from the affidavit. “ At Law, the legal right and liability entirely survive against and for the surviving partners, who alone can, at Law, sue and be sued. (Golding vs. J. & G. Vaughan, 2 Chitty R. 436.)— Therefore, “ A demand against a surviving partner, as survivor, may be joined with a demand due from him, as if he were solely liable.” (lbid.)

And for the same reason, a debt due to a defendant as surviving partner, may be set off against a debt due from him in his own separate character. (Slipper & others vs. Stidstone 5 Durn. & E. 493. French vs. Andrade, 6 Do. 582. 1 Chitty Pl. 37.

As the declaration does not vary from the affidavit, it is not worth while to enquire whether if it did, the fact of its doing so, is such a matter as the claimant, a stranger to the case, could use for any purpose.

The case ought, therefore, to be re-instated and tried again.