STILLWELL & WOODRUFF, for the appellant.

The deeds exhibited were no part of the record, and could not be regarded. Redmond vs. Anderson, 18 Ark. 449.

We have examined the transcript with some care, but have not discovered how the Circuit Court got jurisdiction of the case. A writ of certiorari was issued, but no return was made.

Mr. Chief Justice ENGLISH delivered the opinion of the court. Upon an account for rent filed before a justice of the peace, Dicus sued out process of attachment and garnishment against the effects of Bright, and obtained judgment by default.

Bright applied to the judge of the Circuit Court of Independence county for certiorari and supersedeas, exhibiting with his petition a transcript of the proceedings of the justice of the peace, and alleging matters dehors the transcript to show that Dicus had no cause of action against him, and also averring irregularities in the proceedings.

Upon the order of the judge, the clerk issued a certiorari, with temporary supersedeas clause, returnable to September term, 1859.

The sheriff returned upon a copy of the writ, that he delivered the original to the justice of the peace, and a copy to the constable, etc., but it does not appear that the justice made any return upon the writ, or sent up a transcript of the proceedings before him, as commanded by the writ.

At the return term Bright filed an assignment of errors; and Dicus moved to quash the writ of certiorari, and recall the supersedeas, as having been improperly issued.

The court overruled the motion to quash the writ, and, it scems, upon the cx parte transcript of the proceedings of the justice exhibited with the petition for the writ, rendered judgment perpetually superseding the judgment of the justice, and Dicus appealed

The court was premature in pronouncing the judgment of the justice irregular, and making the supersedeas perpetual.

Until the justice, in obedience to the mandate of the writ of certiorari, sent up to the court a certified transcript of the proceedings before him, the matter was not properly before the court for final adjudication. Derton vs. Boyd, 21 Ark. 264.

There is no ground here to presume (as in Redmond vs. Anderson, 18 Ark. 449,) that a transcript was sent up by the justice of the peace in obedience to the writ, because the only transcript in the record before us is manifestly the ex parte one that was exhibited with the petition for certiorari, which was made out for Bright before the writ issued (as shown from the date of the certificate of the justice), and which had accomplished its purpose when the writ was granted by the judge upon the prima facie showing made by it.

It may be remarked upon the matters alleged in the petition. dehors the transcript, and the deeds, etc., exhibited in support of the allegations, that they are foreign to the case. When the transcript of the proceedings before the justice of the peace is properly returned, upon the certiorari, the court must quash or affirm upon inspection of the transcript. Redmond vs. Anderson, ubi sup.; Mc Coy vs. Jackson county, 21 Ark. 475. The judgment must be reversed, and the cause remanded. for further proceedings.

Dicus vs. Bright, No 2.

JJANUARY

DICUS VS. BRIGHT, No. 2.

A justice of the peace has jurisdiction of an account for rent not exceeding one hundred dollars.

Where a written lease is made the foundation of the suit, it should appear that the legal right of action upon it is in the plaintiff.

But the recital of a lease in an account filed for rent, does not necessarily make the lease the foundation of the suit.

If by any manner of proof the plaintiff might have shown, on the trial before the justice, that he was entitled to recover on the account, the judgment in bis favor should not be quashed on certiorari for want of jurisdiction.

Appeal from Independence Circuit Court.

Hon. WILLIAM C. BEVENS, Circuit Judge.

STILLWELL & WOODRUFF, for appellant.

The account, upon its face, showed an indebtedness by the defendant to the plaintiff, and the court could not know, except by a trial de novo, whether the title to land was involved. It was therefore error to dismiss for want of jurisdiction under the decision in Beebe rs. Fitzgerald, 2 Eng. 30s. The court could not look beyond the record of the justice in determining the question of jurisdiction. Redmond vs. Anderson, 18 Ark. .449.

ROSE, for the appellee.

1. The account filed showed that if there were any cause of action it was evidenced by an agreement in writing, which should have been made the foundation of the suit.

2. The account did not show any legal liability on the part of the defendant to the plaintiff. Levy vs. Shurman, 1 Eng 182.

Mr. Chief Justice ENGLISH delivered the opinion of the court. Dicus sued Bright before a justice of the peace upon an account as follows:

"JOHN W. BRIGHT,

To EDWARD DICUS,

Dr.

To one-half of lease on lands from John Foster to said Bright, as per deed of lease from said Foster to said Bright, at $50 per year from the 1st of January, 1857, to the 1st of January, 1859, making two years, on the south-east fractional quarter of section twenty-six, in township twelve north, in range five west, containing one hundred and three acres, at the one half of $50, or $25 per year... $50.” Dicas obtained judgment against Bright before the justice for the amount claimed in the account, with interest, and Bright appealed to the Circuit Court of Independence county.

On the motion of Bright, the Circuit Court dismissed the case for want of jurisdiction in the justice of the peace, and. Dicus appealed to this court.

It does not appear that the suit was founded upon the lease from Foster to Bright, but upon an account for rent, in which the lease is referred to. The amount of the account, and the subject matter (rent) were within the jurisdiction of the justice, there being no showing upon the face of the justice's transcript, upon which the court below acted in dismissing the case for want of jurisdiction, that the case falls within the ruling of this court in Fitzgerald et al. vs. Beebe, 2 Eng. R. 305.

If the suit had been founded on the lease from Foster to Bright, referred to in the account, and there had been no showing that Dicus had succeeded to the legal right of the lessor to sue upon the instrument, or was in some way privy to the contract, the case would have fallen within the ruling of this court in Latham vs. Jones, 1 Eng. 372, and Levy vs. Shurman, b. 182. Had the Circuit Court proceeded to try the case de novo, instead of dismissing it for want of jurisdiction, we cannot undertake to say that Dicus could, by no manner of proof, have shown that he was entitled to recover of Bright the rent claimed

in the account which was made the foundation of the suit. (Booth vs. Estes, 16 Ark. 111).

The judgment must be reversed, and the cause remanded for a trial de novo, and if, upon the trial, it should appear that the justice of the peace had no jurisdiction of the subject matter of the suit, or that the suit should have been founded on the lease referred to in the account, or that Dicus has no cause of action against Bright, the Circuit Court, of course, will render the proper judgment upon the facts of the case as they may appear in evidence.

HIRSCH & Co. vs. PATTERSON ET AL.

The suppression of a portion of a deposition before the parties go into trial, or the issues are made up, is not cause for a new trial on the ground of surprise. Where the portion of a deposition suppressed could have been of no benefit to the party offering to read it, if it had been admitted, its suppression is no cause for granting a new trial.

Where it was the appropriate province of a jury to determine a matter of fact before them, and their conclusion is not without evidence to sustain it, this court will not disturb their finding upon the matter.

Where judgment is for an excessive amount, it will be affirmed, under the rule, on a remittitur of the excess; otherwise it will be reversed.

Appeal from Independence Circuit Court.

Hon. WILLIAM C. BEVENS, Circuit Judge.