*165jbiuSN'i' 1 ' :bi,'-Circuís C. 'ini, tj/ y. ct^iícr^r?, o •: y< oí ¡ÍVí peace. fof u pfoiifov riot.'-;', Tfe? fobonK'fo fofo been rendered in favor of Whcbtoek, info feay subseqaczit-lj to the rendition of artcb j*$dgfticmt, a settlement had taken placo hol.wi.vi'i the pornos, ’Wfoidorfo. bad. giyen 1-bo pfoifouv;/' e, ¡rorey- fo fofo, '!'fofo- ,10 ox.'!.' cutían war. sued mu sfee i.:f, '"ao u., í.H?; petitioner, urfol foe forro of c/1'; j’V- ■ b " fo,. -o is was rorfe-ofo.
Iníua OfoouC Court, V/foirj-w fo;. the certiorari, which woo ovuvfo fo. ids foeo hied' a brief statement of hits cause of notion, hi the following words:
“ Josephus Wheeloek complains, that before die commencement of this suit; Sikj Wright, defendant, was indebted to him, in the soot» of foriy-ck dollars, for goods, fine, sold and delivered,doc.; money had and' received; money lent and advanced, and money paid and expended; and, therefore, promised said plaintiff to pay the same, and therefore he sueth.”
To which the defendant plead, in short, by consent, non-assumpsit, payment and set-ofifo-on which pleas the plaintiff took issue.
On the trial, the plaintiff’ offered to prove, that there had been a contract, by which the defendant agreed to serve him, for a certain period of tin-e, for stipulated wages; and, that he had paid sao defendant, in advance; but that he had never performed the service: and, that the contract was rescinded.
The testimony was rejected by the Court, as inadmissible, under the issues; and a roMioi and judgment were rendered against the plaintiff.
The errors relied on, are — -first, the refusal to dish *166miss the certiorari, on the motion of the plaintiff; and, secondly, rejecting the testimony offered.
The matter relied on, in the petition for the certio-rari, occurred subsequent to the rendition of the judgment, by the justice of the peace, and afforded no ground of objection to the correctness of the judgment ; at the time it was rendered—and was, therefore, according to the case of Bobo and another vs. Thompson,a decided at the last term of this Conrt, not a sufficient ground for the certiorari. This being the only ground on which it was prayed, it ought not to have been granted. The motion to dismiss should, therefore, have prevailed. But the plaintiff, after his motion to dismiss, was overruled, proceeded to file his statement of his cause of action, and elected to go to trial, on the original consideration. By so doing, we believe, he waived the objection that he had previously taken, to the sufficiency of the petition for a certiorari—and that it is now, unavailable.
We will proceed to the consideraban of the second error assigned.
< 1 3 1 i In all cases of a trial de now, of a cause brought into the Circuit, or County Court, from the judgment of a justice of the peace, whether by appeal or cer-tiorari, the proceedings are not expected to be marked by technical nicety; and the boundaries of actions are not scrupulously observed. It is sufficient if an issue be formed on a substantial cause of action. This indulgence to proceedings commenced in Courts, not of record, is not only secured by our statute of jeofails, but it is also absolutely essential to the ends of justice, in such small causes.
It is not to be expected, that the distinctions, between debt, assumpsit, case or covenant, should be *167known to those who are called on to fill the office of justice of the peace. We believe, however, that the testimony rejected by the Court below, ought to have been received, apart from the considerations suggested. If money has been paid on a contract, in advance, under the expectation that it will be fulfilled; but which the party to whom the payment is made, fails to perform in strictness — it could be recovered back, under the issue for money had and received. This was one of the issues between the parties; and we know no legal- ground for rejecting the evidence offered.
The judgment must be reversed, and the cans© remanded.
3 Stewart & Porter, 385