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.