The opinion of the court was delivered by

The plea of mil tiel record put in issue the fact of the existence of any such record as the plaintiff has described in his declaration. Ordinarily, under this plea, the fact in issue is to be proved by an inspection of the record, which when produced did not support a material allegation of description in the declaration. The allegation was, “ that the defendant, under and by the name of Joseph Hicks, became bail and surety for the appeal.” The parol evidence that plaintiff was permitted to introduce, had a tendency to show that Daniel Hicks, by his own name, was the party who became bail and surety for the appeal; and the evidence had no tendency to show that he became such bail and surety under and by the name of Joseph Hicks. The most that could be claimed from that evidence was, that Daniel Hicks, in his own proper person and name, was the party who became bail, and that the justice by mistake used the name of Joseph Hicks instead of Daniel. The plaintiff could not legally prove any material fact that was not alleged in his declaration ; and he could only recover upon proof of such material facts as were alleged. The parol evidence had no tendency to prove any material fact as alleged in the declaration, and, we think, was inadmissible.

Judgment reversed, and cause remanded.