Brooks v. Carter , 36 Ala. 682 ( 1860 )

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 in 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.