By the, Gowt,

This is an appeal from a judgment of the circuit court of Columbia county in an action of covenant broken. The cause was commenced before a justice of the peace of the proper county, who rendered a judgment in favor of the plaintiff below, from which an appeal was taken to the circuit court, who affirmed the decision of the justice; to reverse which judgment of the circuit court the defendant appeals to this court.

After a careful inspection of the record we are unable to perceive any error in the proceedings of the circuit court, (except, perhaps, in the amount for which judgment was rendered, which will be presently considered).

It would indeed appear to be an anomaly in the science of pleading, to permit an oral declaration of a cause of action in covenant upon an instrument under seal. Nevertheless, section. 45 of chapter 88 of the Eevised Statutes, permits a brief verbal statement of the plaintiff’s demand, on the appearance of the parties before the justice. The usual practice has been, *583where tbe cause of action has been upon some written instrument, to file tbe same with tbe justice, and to declare tbe cause of action to be founded tbereon, alleging tbe breaches from which tbe injury results, without regard to technical precision, or formal assignment. Upon similar pleadings, cases of a magnitude commensurate with tbe jurisdiction of tbe justice, have taken their course without objection, through all the spheres of litigation ; except in those cases in which the panties themsel/ves before the justice, have preferred, each and all, to adopt the strictly technical forms; in which cases they have been held to reasonable precision and accuracy. Such, however, is not the case here, and we think the plaintiff has set out a sufficient cause of action in his declaration.

It is also assigned for error that the covenants in the contract are mutual and dependent, and that the plaintiff failed to prove performance on his part. Admitting the covenants to be mutual and dependent, it is quite clear that the plaintiff did prove that all he was required to perform had been done by him. He offered to complete the purchase, tendered his note and mortgage for the remainder of the purchase money corresponding with the contract, and demanded a deed. He could do no more. He was not bound by his contract to give security for the building of the house, and the plaintiff in error had no right to demand it.

It is further insisted on the part of the plaintiff in error that the plaintiff below proved no damage and was not entitled to recover any. We are at a loss to conceive the propriety of such an objection made in the face of the bill of exceptions. It was in proof that the plaintiff paid one hundred dollars on the purchase money to the defendant at the time of making the contract, that he was at the trouble and expense of making the mortgage, as likewise the demand for the deed. All these facts were fully proved before the court, whose duty it was to consider them in estimating the damage, and would have warranted a verdict for a larger amount if the jurisdiction of the justice and the ad dam/mwn of the declaration would have allowed it.

*584But the objection taken to the amount of the judgment seems to us insuperable; The amount claimed in the declaration is only one hundred 'dollars, and the amount of the judgment is one hundred and two dollars and thirty-three cents. We regret this the more, as the other objections of the plaintiff in error appear to be merely frivolous, and this one purely technical.

But as the case stands, unless the defendant in error comes in and remits the excess, we will be compelled to reverse the judgment.