Opinion of the Court,

THIS being an appeal from a judgment of a justice to the circuit court, where the cause was tried without pleadings in writing, and evidence having been introdu°ed on ^16 trial in the circuit court by Smith, who is plaintiff in the warrant, conducing to prove that he had hired his son to Roberts, for the term of one year, at the of eighty dollars, and that after serving six months ^ time, his son voluntarily abandoned the service of Roberts, the court should have instructed the jury, that in this form of suit, Smith could not recover, if they be^evec^ fr0In the evidence that the contract for the hire of Smith’s son, was for the term of one year, at eighty dollars, and that the son had not remained with Roberts during that time; and in refusing so to instruct the jury, the court erred.

The judgment must be reversed with costs, the cause remanded to the court below, and further proceedings there had, not inconsistent with this opinion.