delivered the opinion of the court.

There was no objection to the instructions, nor was any point made on the rejection or admission of evidence in the court below. The case comes here on a question of variance or a defect in the pleadings. The suit is on a note and is signed “ J. Law Stephens & Co.” Frampton is sued with J. L. Stephens and he puts in a separate answer denying that he executed the note or that he ever was a partner of Stephens. The petition states that “ defendants, by their promissory note, promised,” &c. As the note is executed in a way that is usual with partners, and as the defendant put in his answer denying the partnership, we can not see how he is aggrieved by the action of the court below. But with all ■ provisions in our code on the subject of amendments, is it not singular that the parties should come here complaining of such a defect as is made the foundation of this writ of *265error ? An amendment here could not have operated as a surprise; it would have been granted, of course and it is strange that it was not made.

Judgment affirmed ;