#### BROOKS *vs.*CARTER.

[APPEAL PROM JUSTICE’S COURT.]

1. *Practice in appeal cases.*— Ordinary appeal cases from justices’ courts are triable *de novo*in tbe circuit court; and. tbat court may render judgment, on appeal by tbe defendant, for a larger amount than was recovered before tbe justice.

2. *What will discharge surety.*— The failure and refusal of tbe lessor, when required by tbe lessee’s surety, who was bound jointly with his principal by instrument under seal, to proceed by distress-warrant against the lessee, does not discharge tbe surety from liability.

Appeal from the Circuit Court of Mobile.

Tried before the lion. C. W. Rapier.

This action was brought by Jesse Carter, against R. M. Duncan and A. Brooks, and was commenced in a justice’s court. The justice rendered judgment for the plaintiff, for $11 80; and the defendants removed the case, by appeal, to the circuit court. The plaintiff there filed a *683complaint, claiming $25 for rent due him by the defendants, under a lease dated the 30th October, 1858. On the trial, as the bill of exceptions shows, the plaintiff claimed a balance of $17, as the amount of rent due him; and introduced in evidence before the court the written lease, ■or writing obligatory specifying the terms of the lease, which was under seal, and signed by both of the defendants jointly. “The defendant Brooks then offered to prove, by parol, that he signed and executed said obligation, not as a principal, or joint lessee with his co-defendant, but only as surety for him; that he was recognized by the plaintiff as a surety for said Duncan; that when the rent was due, he insisted that a distress-warrant should issue against said Duncan for the collection of the rent, and offered to give the necessary bond and security to obtain it; that the plaintiff refused to bring the suit, and the justice refused to issue the process, unless the plaintiff would consent to it, and refused to allow said Brooks to have it issued. The plaintiff’ objected to all this evidence, on the ground that Brooks was precluded by the lease, which was under seal, from proving that he was only surety, and thus contradicting the lease by parol proof. The court rejected the evidence, and gave judgment for the plaintiff, for $17, with interest and costs.” The judgment of the court, and its ruling on the evidence, to which ■the defendant Brooks excepted, are now assigned as error.

Gso. N. Stewart, for appellant.

P. Hamilton, *contra*

STONE, J.

Appeals from justices’ judgments, in ordinary cases, are triable *de*novo, on the facts, aud not on errors assigned on the record. — Code, § 2369; Hogan v. Thompson, 2 Porter, 48 ; McCrary v. Smith, 1 Ala. *157;*Waring v. Gilbert, 25 Ala. 295. The recovery, even when the appeal is by the defendant, may be larger than the judgment before the justice of the peace. — Waring v. Gilbert, *supra.*

[2.] We need not inquire, whether the circuit court rightly refused to receive evidence that Mr. Brooks stood *684in the relation of surety to Mr. Duncan. The only use he proposed to make of that fact, if it existed, was, to base on it a right to have the plaintiff proceed by distress-warrant against Mr. Duncan, his principal. Conceding the facts to be as he contends they are, this would give him no right to force the plaintiff to the specific remedy which he desired. — Branch Bank v. Perdue, 3 Ala. 409 Haden v. Brown, 18 Ala. 641; Minter v. Branch Bank, 23 Ala. 672.

Judgment affirmed.