The pleadings and judgment before the justice were competent evidence for the plaintiff. It was no objection that the judgment before the justice was against the plaintiff and the constable. The constable, as appears by the evidence, was acting for the plaintiff, and was indemnified by him. The plaintiff was therefore the principal in the transaction, and the constable his agent, having no interest in the matter, other than his right to be made whole in case of loss. By the payment of the judgment, all his interest in the matter was extinguished, and whatever right or title was derived from the payment, inured wholly to the principal, by whom it was made. This is so upon the plainest principles. If the recovery, therefore, before the justice was for the value of the horse, payment and satisfaction of the judgment would change the title to the animal, and vest it in the plaintiff. The title in such a case is transferred by operation of law. (2 Kent Com., 387, 388; Osterhout v. Roberts, 8 Cow., 43.)
Whether the defendant, in his action before the justice, claimed and actually recovered the value of the horse, as the value was there made to appear by the evidence, was most certainly a question of fact. It cannot be affirmed that a claim and judgment of that description, were a legal impossibility under the pleadings. On the contrary, I entertain no doubt that the declaration would uphold such a judgment in a justice's court. Certainly, if the question was litigated, such a judgment would be final and conclusive upon the parties. It is certainly not very clear from the complaint what the real ground of the action was. The justice entered it in his docket as a complaint "in an action of trespass. for wrongfully and unlawfully taking and leading *Page 216 away and detaining plaintiff's horse." The taking and detention having been justified by the answer to have been by virtue of a judgment and execution against another person, the defendant's title to the animal was of course in issue, and a proper subject of litigation under the pleadings. It is claimed, however, on the part of the appellant, that it is made entirely certain by the pleadings before the justice, and the evidence as to what took place on that trial, that the questions of conversion and of the value of the property were not litigated before, or passed upon by the justice, and that the court should have so held, as matter of law, and nonsuited the plaintiff, instead of submitting it to the jury to be determined as a question of fact. But I am of the opinion that it was a proper case to submit to a jury. The fact that the defendant had the horse in his possession at the time of the trial before the justice, was not of itself a fact of any great weight, one way or the other. It does not appear that he had the horse in his possession when he commenced his action before the justice, nor how he came to the possession he had at the time of the trial. The presumption, I think, from the other evidence is, that he had taken him from the receiptor, and held him subject to the execution until its validity could be tested. Besides, it does not appear that the fact of the defendant's possession at the time was known to the plaintiff, or was the subject of inquiry or evidence at the trial. The constable had, a few days before, very properly delivered the animal to a receiptor, and the inference would be, in the absence of all evidence to the contrary, that the defendant was then holding it for the receiptor, and subject to his obligation to deliver it up to the constable. There was no evidence before the justice of a return of the property to the defendant, as owner, in mitigation of damages or otherwise. There seems to have been no evidence before the justice that the horse had been in any way injured by the plaintiff or the constable, but, on the contrary, it appears by the evidence on this trial that he had not been injured in any respect. It was only a few days after the horse was seized upon the execution, before the *Page 217 action was commenced before the justice, as appears from the complaint before the justice, and as there was nothing in the evidence upon that trial, so far as we can now see, to show that the horse had been injured, or that the defendant had sustained any special damage by the seizure and temporary detention, the question was fairly presented at the circuit, as to the nature of the claim on which the large judgment of the justice was founded.
The appellant's counsel insists that there was no evidence given before the justice in respect to the value of the horse, upon which any judgment for such value could have been predicated, and that inasmuch as the value of the horse upon this trial is shown, without dispute, to have been $250, it is put beyond all doubt that the judgment before the justice, was not for the value. But the case is not so clear as this in respect either to the fact or the inference. The case only shows that all the evidence there was before the justice as to the value of the horse, was the price paid for him by the defendant, which was $100, and that this evidence as to value, was there received without objection.
This evidence, had it been objected to when offered, would probably have been ruled out, as incompetent on the question of value. But as it was given without objection, it was some evidence upon the question, which might be referred to by the justice and acted upon in the absence of any other. It is of no consequence whatever, to the question before us, whether the actual value was $100 or $250. If the defendant recovered the value as it was made to appear on that trial, he cannot keep both the horse and the amount of the judgment. To my mind, the weight of the evidence seems to be decidedly in favor of the plaintiff's claim, that the judgment before the justice was for the value of the horse. But whether it is so or not, it was clearly a proper question to be submitted to the jury. The judge at the circuit was right, therefore, in refusing to nonsuit the plaintiff, and the charge to the jury was correct in point of law.
The judgment should be affirmed.
All the judges concurring,
Judgment affirmed. *Page 218