
    Henry Stier vs. James Surget.
    In a suit before a justice of the peace, the only thing he has to determine is, the question of indebtedness, without regard to the technical form of the action. His is not a common law court.
    Where the lessor sought to recover on an express agreement to pay rent, it was held to be immaterial whether the lessee occupied or not. At common •law, an action of assumpsit may be sustained on an express agreement to pay rent, and the occupancy of the defendant is then immaterial.
    In appeals from justices, the circuit court acts as an appellate court; it has only such jurisdiction as the justice had, and the case must be tried de novo ■on its merits. Therefore, where, on an appeal from a justice’s court, in a suit upon an express agreement to pay rent, the declaration alleged occupation by the request of the defendant, and by the permission of the plaintiff; and the proof was, that the defendant agreed to pay the plaintiff ten dollars per month for the rent of the premises ; it was held, that there was no such variance as would affect the merits, and that the court had to try the case upon its merits.
    Where there is a variance, the proper course is to exclude the proof; if it is admitted, advantage of the variance cannot be taken in the high court of errors and appeals.
    Where the plaintiff claimed twenty dollars for rent of a house and lot, and obtained a judgment therefor, and the defendant, on a motion for a new trial, admitted that he owed twenty dollars for the ground-rent of the lot alone, but claimed to own the house himself; it was held, that merits were obviously with the plaintiff, and that the controversy as to the ownership of the house, had nothing to do with the rights of the parties in the suitjr-a party might, under certain circumstances, become liable for the rent of his own house.
    ERROR from the circuit court of Adams county; Hon. Thomas A. Willis, judge of the second judicial district, presiding.
    James Surget sued Henry Stier, before a justice of the peace, on a plea of debt, on an account for rent, from the 26th August, to the 20th October, 1844, and recovered twenty dollars and costs. Stier appealed to the circuit court of Adams county. Surget filed a declaration in that court, in which he alleges, that Stier, in consideration that he (Surget), at the special request of said Stier, had permitted him quietly to hold and occupy a certain house and lot under the Hill, in Natchez, from the twentieth day of August, to the twentieth day of October, 1844, which said Stier held and occupied accordingly, promised Surget to pay him on demand so much money as he reasonably deserved therefor; and the plaintiff avers, that he reasonably deserved to have therefor twenty dollars.
    Stier pleaded non assumpsit; and the jury found for the plaintiff.
    Lyman Potter, a witness introduced on the part of the plaintiff, stated, that this cause was originally tried before him, as a justice of the peace; that on trial of said cause before him, the defendant admitted to him, he owed Surget twenty dollars for ground-rent, which he was willing to pay, but not for house-rent. Witness proposed to change the account to ground-rent; but the defendant objected to doing so; upon which he gave judgment against Stier; that Stier said something about being agent for a man by the name of Kneef, or something like it; that he did not live in the house; he was then living on the Hill, in Natchez.
    The plaintiff was then introduced as a witness, and stated, that he and others leased the lot in question to O’Conley, at a stipulated rent; that O’Conley was to put up a house upon said lot, such as he thought proper, and, at the end of the term, plaintiff would pay him the value of said lot, provided O’Conley paid the rents, which he failed to do, and now owed the plaintiff three or four thousand dollars rent; that plaintiff turned O’Conley out of possession of the property at the end of his term, and rented the house and lot to Stier; that he considered Stier his tenant during the months charged in the account. Stier had not notified him he had left the premises, nor had plaintiff rented to any other person. Plaintiff said he rented the house and lot under the Hill, in Natchez, for which the account sued on was made out in the year 1844, to the defendant, at ten dollars per month, to be paid monthly in advance; that he had not been paid for the two months sued for. Admitted that he did not put up the house on the lot, and that said lot belonged to himself and others, as joint tenants; he believed that the defendant moved on the Hill, before the time for which he is sued for, but he considered it rented to him; that after O’Conley was removed, he rented the ground to Stier; and again in 1844, rented him the house and lot, as before stated.
    The defendant was then introduced as a witness, and stated, that he did not occupy the house and lot during the time set forth in the declaration filed in this case; that during those two months, he was living on the Hill, in the city of Natchez, where he now resides; that he had sold out his interest in this house, to one George Kneef, now residing in the state of Virginia; that he, and one Markil, purchased the lease of Nicholas O’Conley, before it expired, with the understanding that he was to get the house, and paid him five hundred dollars in cash therefor; that he never rented said house from plaintiff in his life at any time, but had rented and agreed to pay a ground-rent to said plaintiff for said lot about four years ago, when O’Conley was turned out, and again agreed in the spring of 1843, to pay him a ground-rent monthly in advance for one year, for the same property ; that he did not rent the house and lot from plaintiff, in the year 1844, nor occupy it for the time charged in the account or declaration; that in August, 1844, he acted as agent for said Kneef, merely to pay rent for him.
    This was all the evidence on either side.
    Steir asked the court to instruct the jury, that, “ if the. jury find, from the evidence, that the defendant, Stier, did not occupy the house and lot in plaintiff’s declaration mentioned, for the time therein specified, that the law is for defendant, and they must find for him.” This was refused; and he excepted. The jury having found a verdict for the plaintiff, Stier moved for a new trial. The motion was overruled; and he prosecutes this writ of error.
    
      Sanders and Price, for plaintiff in error.
    1. The original process is for a plea of debt; the declaration is in assumpsit.
    
    2. The account before the magistrate, was for house-rent; the declaration was for rent of house and lot.
    3. The proof does not support either demand. It is clear, that Stier was never a tenant of Surget’s; and the proof shows that he owes him nothing.
    4. For the variance between the pleadings and proof, the plaintiff below cannot recover. 1 Chit. PI. 325 — 328; Robertson v. Lynch, 18 John. Rep. 117; 3 Stark, on Ev. 1526; lb. 1548, Tit. Variance.
    
    
      Winchester, for defendant in error.
    1. Any objection to pleadings before the justice, cannot prevail ; the proceedings before him are informal, without pleadings; and no distinctions of actions are known in his court. How. & Hutch. Dig. 591.
    2. Proof of actual occupancy by the defendant, was not necessary. 2 Saund. on PI. and Ev. 892, and cases there cited; Title “ Use and Occupation; ” 10 S. & R. 251; 7 H. & J. 251.
   PeR Curiam.

This suit was originally brought before a justice of the peace, by Surget, for rent; and the justice gave judgment for $20, the amount claimed. An appeal was taken to the circuit court, where a verdict was had in accordance with the previous judgment.

The first objection taken to the proceedings, is, that the action was debt, before the justice; and the plaintiff below declared in assumpsit, in the circuit court. The only thing a justice has to determine, is, the question of indebtedness, without regard to the technical form of the action. His is not a common law court.

Another objection is, to the refusal to give the charge asked, which was, that if Stier did not occupy the house and lot, for the time specified, the jury should find for him. Under the evidence, this charge would have been improper. Surget sought to recover on an express agreement to pay rent, and it was therefore immaterial whether Stier had occupied or not. At common law, an action of assumpsit may be sustained on an express agreement to pay rent, and the occupancy of the defendant is then immaterial.

It is also said, the proof varied from the allegation in the declaration. In the declaration, the occupation is alleged, as by the request of defendant, and by the permission of the plaintiff. The proof is, that the defendant agreed to pay the plaintiff ten dollars per month, for the rent of the premises. In appeals from justices, the circuit court acts as an appellate court; it has only such jurisdiction as the justice had ; and the case must he tried de novo on its merits. This was not such a variance as to affect the merits; and that was the only thing the court had to try. But for a variance, the proper course is to exclude the proof; and no motion to that effect was made. The testimony was admitted without objection.

A motion was made for a new trial, which was overruled. The plaintiff was sworn ; and stated that he had agreed to rent the house and lot to defendant, and considered him as his tenant. The defendant was also sworn; who stated that he did not occupy the house during the two months mentioned in the declaration, having sold out his interest to a third person; that he had never rented the house of plaintiff at any time, but had agreed to pay him ground-rent for the lot,/which he admitted to be due, on the trial before the justice. The defendant claims to be the owner of the house. The matter stands thus : The plaintiff, Surget, claims twenty dollars for rent of a house and lot; the defendant admits that he owes twenty dollars for the rent of the lot alone. The merits then are obvious. The controversy, as to the ownership of the house, having nothing to do with the rights of the parties in this suit. Whether ownership of the house can be separated from the lot, is not now a question. A party might, under certain circumstances, become liable in this form for the rent of his own house.

Judgment affirmed.  