Steckel v. Weber

The opinion of the Court was delivered, by Lewis, J. The cattle of Steckel having committed a trespass upon the premises of Weber, the latter commenced proceedings befor.e a justice of the peace, which were described in the transcript to be a “warrant to appraise damages under the Act of April 13, 1807, relating to strays, &c.” After judgment was entered for the plaintiff, the defendant appealed, and the cause was tried by consent, under a declaration and plea in assumpsit, [435] in accordance with a practice which prevails in some counties of the state. The Court of Common Pleas decided upon the rights of the parties as in an action of trespass, and this is one of the errors complained of. The decisions of the Court below depend so much upon the form of the action, and the nature of the pleadings, that it is very difficult to review them where the parties have paid no attention whatever to either. It is not going too far to declare that where the parties have voluntarily tried an action of tort under pleadings applicable only to actions on contracts, it is a waiver of all objections to the form of the action, and also to any variance between the form of proceeding before the justice and that tried on appeal in the Common Pleas. We see no error affecting injuriously the plaintiff in error Judgment affirmed.