star-pagination">*Page 212 Though the complaint in the action in the justice's court was somewhat vague and equivocal, the fair construction of it, I think, was that the defendant had taken away the plaintiff's horse and detained him for a limited time, and had injured him. The statement that he had been injured, and that the plaintiff had lost his services, would have been unnecessary and incongruous in an ordinary action of trespass or trover for a horse. I conclude, therefore, that a judgment following that complaint, if there had been no departure from the cause of action set out in it, would not have had the effect to change the property in the animal, and that the present action could not have been maintained.

But I am inclined to the opinion that, without a formal amendment, the scope of the action may have been so changed by the course of the trial and the kind of evidence admitted, that it may be affirmed that a recovery was eventually *Page 213 had for a simple taking of the horse, as in an action of trespass or trover. The statutes relating to courts of justices of the peace, contain these provisions: "Pleadings are not required to be in any particular form, but must be such as to enable a person of common understanding to know what is intended. (Code, § 64, subd. 5.) "A variance between the proof on the trial and the allegations in a pleading shall be disregarded as immaterial, unless the court shall be satisfied that the adverse party has been misled to his prejudice thereby." (Id., subd. 10.) "Whenever issue shall have been joined in a suit before a justice, if no jury shall have been demanded by either party, the justice shall proceed to try such issue, to hear the proofs and allegations of the parties, and to determine the same according to law and equity, as the very right of the case may appear." (2 R.S., 242, § 91.) Supposing it to have appeared, on the trial of this action before the justice, that the defendant had wrongfully taken the plaintiff's horse, and nothing had appeared to show that the plaintiff had repossessed himself of the property, or it had been shown that the defendant had converted him to his own use, and the justice, disregarding the language of the complaint, had given judgment for the value of the horse as for a taking by trespass or a conversion, the judgment would not have been void; and if no objection, raising a question of variance, had been taken, perhaps it would not have been erroneous. It would have been a recovery for the trespass or conversion, and would have changed the property in the horse. There was some reason to suppose this may have been so, from the amount of the recovery, which was the same amount which the plaintiff in that action had paid for the animal. This, I concede, would not have been enough for the purposes of the present plaintiff; for the assessment of an excessive amount of damages in an action for an injury to the property would not have changed the legal character of the recovery. But the defendant, in the present case, was permitted to, and did give in evidence, the minutes of the testimony in the action before the justice. They are not set forth in the case in this action, *Page 214 and we cannot say how far they did or did not warrant the allegation that the scope of the action had been changed by the evidence taken before the justice. It was, indeed, proved on the trial of the present action, that the plaintiff, in the justice's court, had the horse in his own possession when that action was tried. But we do not know that the case was so presented by the evidence before the magistrate. The wrongful taking may have been proved, and nothing else. I am of opinion that the minutes of the testimony were properly received. When they had been read in evidence and the facts as to what took place to change the scope of the issue were clearly ascertained, it was no doubt a question of law whether the recovery was for the value of the property or for damages for injuring it; but the history of the trial and the nature of the evidence given were matters of fact. The proper course was for the judge to leave the case to the jury, with proper instructions as to the effect of a departure from the complaint in making out a case upon the evidence. We are to presume that the proper instructions were given.

When the motion for a nonsuit was made, in the case we are reviewing, the minutes of testimony had not been given in evidence. The case then stood upon the pleadings and the judgment in the action before the justice, and if I am right as to the meaning of the complaint, the plaintiff should have been nonsuited. But a different case was presented when those minutes had been received, and if they were to the effect which I have suggested, and the jury have found that they were, the error was cured.

The circumstance that another person was sued with the present plaintiff, in the action before the justice, was not, under the circumstances, material. The plaintiff was the party for whose benefit and at whose instance the seizure, which was the foundation of the action, was made. The officer is to be considered his servant. As the process did not warrant the seizure, his official character was of no importance. In such a case, if the servant were sued alone, I think the property would, by force of the judgment, have *Page 215 vested in the party by whose command and for whose benefit the trespass was committed.

The appeal from the justice's judgment was abandoned. The notice of the discontinuance of the appeal, and the bringing of this action, grounded on the effect of the judgment, was a sufficient waiver of the appeal.

I am in favor of affirmance.

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