
    John Ruddell against John Mozer & Barnett Mozer.
    Error to Independence Circuit Court.
    
    The rule that the allegations and proof must correspond, applies to cases commenced -before a justice of the peace, so far as the plaintiff is bound to state the ground of his action, but no farther.
    His evidence must in every case be of the same legal character and description,-as that mentioned in the summons, which the defendant is called upon to answer.
    In every other respect the proceedings are ore tenus.
    
    No bill of exceptions can be taken before a justice ; but'-ei-ther party may take them on the trial upon appeal in the Circuit Court; and will have the same advantage of them when improper testimony is .admitted, or proper testimony is excluded, as though -the pleading had been formally drawn out in ibrm.
    Where the action before the justice was founded on a parol agreement, and a vvritten agreement was permitted to go in evidence on the part of the plaintiff, in the Circuit Court, which would have been inadmissible, in the foundation of the action, yet, if the record does not show that the agreement so offeied in evidence was filed before the justice on or before the day of trial, nor in the clerk’s office on the appeal being taken; in such case the record does not show it to be the foundation of the action. And the legal presumption is, that the suit was, not based upon it, but on some .other agreement by parol, as contradistinguished from a written agreement.
    If such were not the fact, the defendant should have shown it by bill of exceptions. Not having done so, the legal presumption is, that sufficient legal proof was offered to warrant the verdict and judgment in the Circuit Court.
    If therefore the case could have occupied such an attitude as to justify the introduction of the written agreement for any purpose whatever, the legal presumption is, that it was in such situation when the writing was admitted.
    And it makes no difference, if the names of the plaintiffs are differently spelled in the summons, and in the agreement. The identity must be presumed to have been proven, or in other words, that the plaintiffs, as well as the defendant, executed the agreement.
    Where the defendants were named “John Mozer .and Barnett Mozer” in the sumipons; 'and in the agreement offered in evidence “ John Mousuer and Barnett Mosuser,” and their signatures to the agreement were “John Mouseuer and Barnett Mouseur,” held that the names were idem sonans.
    
    This was an action originally commenced before a justice of the peace, and the summons commanded the constable to summon “ John Ruddell, surviving partner of John Ruddell and Aaron Gillett, partners under the style, &c. of Ruddell & -Gillett, to appear and answer unto John Moser and Barnett Mozer in an action on a parol agreement
    
    The justice gave judgment- against Ruddell for $33, and heap-pealed to the Circuit Court.
    
      When the case came on for trial in the Circuit Court, a jury was called to try the issue; andón the trial the plaintiffs offered in evidence a written agreeement, which was in the following words:.
    “ Artickles of and agree ment maid and enteredinto by and between John Ruddell and Aaron Gillett on the one part, and JohnMousur and Barnett Mosusur of the other part, all of the county of Independence county, and Territory of Arkansas, witnes that the said Mouses hais higerd to the said John Ruddell and Aaron Gillett ther 2 suns, Sam and Fedrick, for the sum of 22 dollars per mont, and is to let them goo to Crit ten county, and clear ground and make fence, on the land that they hav agreed to clear for Thomas P. Eskridge, and they bind themselves to let them work five months apeace, to commence about the first day of Febuary, or soner if called on, and they aint to leave them until the first day of July, this 12 day of January, 1835 ” — which agreement was signed “ John Ruddell & Gill." “ John Mouseuer, Barnett Mouseuer."
    
    The defendants objected to its being read in evidence, which objection was overruled, and it went to the jury, who found for the plaintiffs . $53 70 damages, for which, and costs, judgment was rendered. The defendant then moved for a new trial, which motion was overruled, ■and he sued his writ of error.
    . Fowler & Blackburn, for the plaintiff in error:
    In behalf of Ruddell it is contended, that the said writing was improperly admittted in evidence, and that the .judgment predicated thereon must be erroneous.
    Firstly, That it ought not to have been admitted, because the writ which was the foundation of the action, and in place of a declaration, called on Ruddell to answer “in an action on a,parol agreementand the agreement given in evidence was in writing. The Statute governing such proceedings before justices of the peace, evidently draws a distinction; and under the Statute the precise cause of action should be stated in the summons. See. law and form of summons, in Geyer's Dig. p. 382, 382, sec. 1. The proof must correspond with the allegations.
    
    Secondly, There is no signature of Aaron Gillett appended'to the contract, as the face of it in order to make it valid, shows that there should be; or there should be a showing that Aaron Gillett's usual signature, or the signature that he used in this case was “ Gill." There is nothing showing that Ruddell and Gillett were partners, wad in order to make it their individual contract, as it purports on its face, both of them should have signed: otherwise, it is misdescribed, and if the contract of Ruddell at all it is his own individual contract, and pot that of him and Gillett, either, individually or as partners; and does qot make him responsible in manner and form, and in the character and name, by which he is described and called upon to answer in the summons. If Ruddell’s contract at all, it is his individual liability, a3‘ signed by no other person but himself. Such variance is fatal, and the writing ought to have been excluded. Archb. Civ. PI. 113; 1 Peters’ Rep.p. 139; 3 Stark. Ev. 1575.
    
      Thirdly, The said John and Barnett Mozer were entitled to no ben* efit from the contract produced in evidence, having no legal interest therein. It was a contract in favor of John Mouseuer and Barnett Mouseupr, persons of different name, both in spelling and sound, and could not be legal evidence for the plaintiffs below, unless it had been transferred to them by assignment. Therefore, being a contract between different persons, it was materially variant from the contract described in the summons, and ought to havte been excluded for such gross and palpable variance.
    
      Fourthly, The writing produced in evidence showed clearly a demand not within the jurisdiction of a justice of th.e peace. A c¡pnr tract forJive months work at twenty-two dollars per month, (supposing the lowest even, that it was for their hire jointly,) amounts to one hundred and ten dollars — a sum for which suit should have been instituted in the Circuit Court originally, which, by the State Constitution,-ha| exclusive jurisdiction thereof. Tide Art. — Sec. — The contract was an entirety, and could not be separated into different suits; and if suit had been brought for a balance due, the record should have shown the fact — if to be tolerated at- all. Tide 15 Johns. Rep. 2519, Smith vs. Jones,
    
    Upon all these grounds, Ruddell contends that the case ought to be reversed.
    As to variance see cases in point. Peak. Ev. 197; Hardin's Rep. 507, Palmer, &c. vs. McGinnis; 1 J. J. Marsh. 299; 5 Taunt. 814.
    As to allegations, proof,. &c. see Ark. Sup. Courts Rep. p. 118, Jeffrey vs. Underwood.
    
    When a note was given by the name of Shirtleff and declared in the declaration, as made by Shutliff, the plaintiff was non-suited. ,1 Chit. Pi. 307; Garden vs. Austen. 4 Tenn. Rev. Sil.
    Clbkdenin, contra:
    
    The action was well brou"lit on a parol agreement if the court should incline (o the opinion that the writing copied in (he plaintiff’s bill of exceptions, was the basis of the action; for it is a well settled principle that all contracts not under seal arc parol, — (see Comyn on Con.' Chap. 1st, Part Isi.) — and there is no law' in force in Arkansas that can be so construed as to abolish the well settled distinction between sealed instruments and parol contracts.
    The paper transcribed in the record of this case, as the court will perceive, was not objected to as constituting ,the basis of the action; but merely as evidence in the cause, so that the Circuit Court did not err in admitting that in evidence, which both parties had made tlie highest and only evidence of their contract. If this court should believe that the paper copied in the bill of exceptions is not such a one as is 'described inthe summons, and (hat therefore the action cannot be sustained upon it; yet they will be bound to presume that it was not regar-déd by the court below as the basis of the action, but that the action was founded upon other and different evidence, as nothing appears to the contrary in the bill of exceptions; nor does it say that there was no other testimony adduced before said Circuit Court. This courtis bound to sustain the judgment of the court below, and to presume that it had sufficient and competent evidence to fbund its judgment upon, unless it shall be made to appear to the contrary by the bill of exceptions.— See ULiitell, 182,188; 5 Liltell, 316, 221.
    To'the second assignment they answer that it no whereappears* in the record that their signature, so far as is necessary to be inquired into by this court, was disputed, either by the plea o {non est factum, or any other plea. If the plaintiffs in error had intended to 'deny the execution of the paper, he should have done so in the Circuit Court, by the plea of non est factum — or if he had intended to deny that he was the identical person motioned in the summons, he should have pleaded the plca-of misnomer: and since he has failed to plead either, this court is bound to .presume that the Circuit Court had all the evidence necessary to authorise the judgment given in the case. This court will presume that every objection that could.be made, was made, and .that tire plaintiff alone combatted and silenced them by competent and legal testimony, unlil the contrary clearly appears by the record. And this court is confincd'in its investigations lo the points raised and adjudicated upon by the inferior court. ’'Sec Statutes of Arkansas, A. D. 1838y>. 132, see. 14, regulating practice irs Supreme Court,
    
    To the third assignment defendants answcrthal there is no variance between the names oi'the plaintiffs below,, as described in the summons, and the paper copied in the bill of exceptions, as Mozer and Mousur are one and the same in sound; and in case the court should think otherwise, it is a point that they cannot take cognizance of, as no ob* jections appear to have been made in the court below. This is a matter that could only be taken advantage of by the plea of misnomer filed in the CircuitCourt, and since that does not appear this court will presume > them to be the same name, or that they -are known as well by the one as the other, and that the Circuit Court had ample evidence of that* fact. ,
    To the fourth error the defendants have already answered.
    To the fifth error the defendants answer, and say that according, to the contract of the parlies, the defendants had aright of action on the expiration of each succeeding month, and had their option to institute fine, separate writs, or to postpone suit until the expiration of the whole five months, and then commence in the CircuitCourt. The defendants hold it lo be wholly immaterial in this case whether the contract be considered as an entirety, or capable of a separation, as they rest their case on a ground that will sustain them in either view of the case. Suppose the contract in this case to be entire, and that the defendants were prevented from performing the whole contract, either by the act of God, or by the act of the plaintiff, would this court say that these defendants could not recover a reasonable compensation for their labor? I presume not. if, then, that is the law, it does seem that this court can arrive at no other conclusion than that it was proven before the Circuit Court, that the defendants were prevented from doing so, as there is nothing in the record to the contrary; and if such proof be necessary to sustain the judgment, this court will presume that such was the case, as made out in'the court below. Their defendants now insist that inasmuch as they have altered a judgment before a jusiice of the peace, and then again in the Circuit Court, that they are entitled to the benefit of all legal presumptions; and that this court will sustain the judgment of the .court below, unless it shalj be.so fatally defective that it cannot by any possibility do so.
   Rlíítío, Chief Justice-,

delivered the opinion of the Court:

This is á writ of error-, prosecuted to reversé á judgmentof the Couft Of Indepehdeiice county. The actioii wás commenced béfore á justice of áhe peácé, by the defendants in error, against John Ruddell-, as survivor Of Aaron Gillett, late partners, who were summoned t<* answer the plaintiffs “ in an action on a parol agreement.’* On the trial before the justice, the plaintiff obtained a judgment for .¿8 dollars* from which the defendant appealed to-the Circuit Court;— fihd for the prosecution thereof, Daniel C. Ruddell became his special bail;

A jury-viras éthpahñelled áñd Sworn to try the cause in thé Circuit Cóürt, and returned a verdict for the plaintiff for $58 70-100 in dam* ágfe's,upóh which the court rendered judgment in favor of the plaintiffs, against the defendant and Daniel C. Ruddell as his special bail, for the amount of damages found by the jury, and all of the costs of suit. On the trial before the jury in the Circuit Court, the plaintiffs offered as evidence a written agreement, to the introduction óf which the defendant objected, and moved the court to exclude it, but the Court overruled his objection, and admitted it to be réad as evidence to th'e jury. The defendant excepted to the opinion of the court overruling his motion to exclude the written agreement, and admi'ttingit at evidence in the case, and filed bis bill of exceptions, setting out the agreement in haec verba, and making, it a part of the record.

The defendant also moved thé court for a new trial, upon the following ground's: 1st, That the jury found contrary to law and'evidence. 2nd, That the jury found Contrary td the instructions of the court.— Srd, That injustice has been done him in the case. 4th, That the action'is misconceived. But the court Overruled his motion. There is an assignment of error and joinder thereto. The first error assign-fed qüe’sliohá the judgment of the Circuit Court in admitting the agreement in writing as evidence on behalf of the plaintiffs below, on the following grounds: 1st, Because it varies from ithe cause of action described ih the 'summons in this, that it is not a parol agreement, but án agreement in Writing. 2nd, Because it, does not purport to have bfeen sighed by Aaron Gillett, nor by Ruddell, as alleged in the summons. 3rd, _ Because the persons named iri the argreemént, are other and different persons from those named in this suit. 4th, Because the Written agreement was made and signed'by John Móusuer 'and Édrfíétt Mourner and hot by, or in tlie nátnéé óf thé plaintiffs; thé names ba-ing Wholly different in spelling and sound. And 5th, Because the Written agreement is evidence of a demand and amounts in controver#y exclusively within the jurisdiction, of the Circuit Court, and over which the justice of the peace had no jurisdiction. The second error assigned questions, the decision of the court overruling the defendant’s motion for a new trial. And the third is the general assignment, that the judgment is for John and Barnett Mousuer against John Bud-deÜ — whereas, by the law of the land, it ought to have been given for the latter against the former.

The questions raised by the assignment of errors will be disposed of in the order in which they are .stated-. ■

It is a general rule that the allegations and proof must correspond, and, the facts put in issiie by the former must be established by thelatter, to enable the party holding the affirmative, to succeed in obtaining a judgmentin his favor; and this rule hasbeen held to apply in cases commended before ¿justice of the'peace, so far as the plaintiff is anderthe Statute, bound to state the gf-ound of his action; but no farther: asfor in* stance, where he states that his action is founded on a writing obliga* téry, evidence óf a parol contract cannot be received, and so vice versa, and the plaintiffs’ evidence must in- every case be of the same legal character and description, as that mentioned in the summons, which thb defendant is called upon to answer, and if it vary therefrom in this respedt, it is inadmissible; but the pleadings are in every other res* pfeét, ere tenus, and neither the allegations nor proof appear of record, or comprise any part thereof, unless made to do so by being incorporated into a bill of exceptions, which cannot be taken by either party before'the justice, but which it is the right of either party to have up:-cft a trial of the case before the Circuit Court on an appeal; and if ftotti the facts thus made of record, it appears that irrelevant, illegal, or incompetent evidence Was admitted, or relevant, competent proof Wás excluded on the trial, the party prejudiced thereby is entitled to the same advantage thereof on a writ of error, as if the pleadings Were regarded by law to be formally drawn out in writing. And where the action is founded on any bond, bill, or note, in writing, the plaintiff is required to file the same with the justice, on or before the day of trial; and where ah appeal is taken from tile judgment of a justice, it is fey law ¡nade the duty of the justice to file with the clerk tíf fee Circuit Court, on Or before thefirst day of the next term tberof, “ the original papers and process, together with the recognizance anA other papers appertaining to the case, and a copy of the entries made: in his docket.” And the law prescribes that the case shall be tried-on its merits, without regard to any ii regularity or want of form, on » the trial or proceedings of the justice, and no exceptions shall be ta-hen to any irregularity or want of form. ;

..The action is founded on a parol agreement; and the record does: not show that the agreement in writing offered in evidence on the trial: in the Circuit Court, was filed in the case, on or before the day of trial, before the justice of the peace, as it was required by law to have been, if it was the foundation of the action; nor does it appear that it was filed by the justice in the clerk’s office on the appeal being taken, with the papers and process appertaining to the case, as the Statute requires, if the action was founded upon it: therefore, inasmuch as the: record wholly fails to'show that it constitutes the ground of the plain» tiff’s action, the legal presumption is that the suit is not based upon it, but upon some other agreement, by parol, as contradistinguished from a written agreement; and if such was notthe fact, it was the duty of the defendant, when he objected to the evidence, and his objections were overruled, to have shown it by his bill of exceptions, which hc-has nof thought proper to do; and thereby, and by failing to set forth; all the evidence in the cause, he has subjected his case to the full operation of the legal presumption, that there was adduced oil the trial, other legal proof sufficient to warrant the jury in finding the1 verdict, and thecourtin rendering judgment thereupon in favor of the plain-, tiffs, and he by his bill of exceptions presents this isolated question:— whether the written agreement could legitimately be admitted as evidence to establish any fact in the claim of testimony requisite or proper to maintain the action upon the parol agreement. The bill of except tions states simply that the plaintiffs offer to introduce as evidence a. written agreement, to which the defendant, by his attorney,objected,. and moved the court to exclude the same, which motion was overruled by~the court; to which opinion of the court the defendant excepts» and prays the agreement in- writing, a copy of which is hero given to-be made part of his bill of exceptions. Articles of agreement made- and entered into by and between John Rudd ell and Jaron Gittett of the one part, and JohnMousur and Barnett Mousueroi the other part, all of the county of Independence, country and Territory of Arkansas, witbesseth thatthe said Mozsrs have hired to the said John Rudddl and Aaron Gilletl their two sons, Sam and Fredrick, for the sum of 22 dollars per month, and is to let them go to Crittenden county, clear ground, piake fence on the land they have agreed to clear for Thomas P. Es-bridge; and they bind themselves to let them work five months a peace — to commence about the first day of February or sooner if called on, and they aint to leave them out tell the first day of July, this 12th day of January, 1835.

JOHN RUDDELL, and GILL,

JOHN MOUSUER,

BARNETT MOUSUER.

And the said defendant prays .that the above copy of the agreement may be signed, sealed, and-made a part of the evidence in this ■case. ' L. B. TULLY, [l. s.]

But this bill of exceptions wholly fails to show what evidence was before the court and jury, when this written agreement was offered and admitted, what fact it was designed to establish, or what the state :of pleading between the parties was; consequently, if the case could have occupied such a situation as to justify the introduction of the written agreement, as evidence for any purpose whatever, the legal presumption is, that it was in such situation when the writing was .admitted, and that the case may have occupied such an attitude that this written agreement would have been competent legal testimony, for the plaintiffs cannot, in our opinion, be denied. Suppose, for instance, that the parties to this very agreement, after it was entered into and had been partly executed on the part of the plaintiffs, had mutually agreed by parol to dispense with the further performance thereof by the plaintiffs, and that the written agreement should he cancelled, and that the defendant and Gillett, since deceased, should, in consideration thereof, pay them so much money as the service performed by them under said contract was reasonably worth; and the plaintiffs had sued the defendant on this parol agreement, and it became a question on the trial, whether such written agreement ever existed, or whether the plaintiffs had rendered any service under it, Y/ould not the agreement in writing itself have been the best evidence of the fact, that such agreement had been entered into between the parties, and of the terms thereof, and thev service to have been performed by the plaintiffs under it? We believe it would in such case have been the only legal evidence to establish these facts, unless the writing had been lost or destroyed; when, upon the proof of the loss or destruction thereof, secondary evidence could have been admitted. The patty controverting the decision is, in every instance before he can succeed, bound by law to exhibit facts, the .existence of which show affirmatively that the court decided wrong. By applying these well settled principles to the case before us, it manifestly appears that there is no error shown by the record in the judgment of the court below, overruling the defendants motion to exclude the written agreement, and admitting it as evidence in the cause; nor does the fact of the different spelling of the plaintiff’s name in the summons, and in their signature to the written agreement, make any diiferance as to the question; because these evidently-must now be presumed to have been proven, or in other language we are bound by law to presume, that there was full prpof that the .plaintiffs, as well as the defendant and Gillett, did execute the agreement; but independent of this legal presumption, we have no doubt that the name of the plaintiffs, as it is spelled both in the summons and their signature to the written agreement, may very properly be pronounced alike, and that they should be, and are in law required, as being idem spnus.

If we are right in the conclusion that the agreement in writing was legal testimony for the plaintiffs, and correctly admitted to go to-the jury as evidence in the case, there is nothing in the record from which we can determine that the court erred in refusing the defendant anew trial-, The whole evidence- is not spread upon the record, and wp cannot from any thing appearing in the record, see that the. verdict of the jury is either contrary to law or evidence, or that if does not con-curra to the instructions of the court, as no instructions are shown to have been either given, or refused; nor does it appear that injustice has been done the defendant, or that the plaintiff’s action is misconceived.

Wherefore, we are of the opinion that the record does not show any error in the judgment of the Circuit Court, and that the «ame. ought to be, and it is-hereby affirmed with costs.  