delivered the opinion of the court,
It is undoubtedly true that in case of the mere detention of a chattel a plaintiff cannot waive the tort and sue in assumpsit or in debt. Without something more than mere detention there is no contract either expressed or implied : Bethlehem Borough v. Perseverance Fire Co. 31 P. F. S., 445; Boyer v. Bullard, 6 Out., 555. It follows that if the plaintiff below had in the Common Pleas declared either in assumpsit or in debt, the evidence might not have sustained the action. In this case no narr. was there filed. Due effect must therefore be given to the 4th section of the Act of 1810, which provides on appeal from a justice of the peace to the common pleas, the cause shall be decided in such court on its facts and merits only, and that no mistake in the form or name of the action shall prejudice either party. This case was tried on its merits. The fact that the court did not put the case on the true grounds, does not prevent our doing so now.
Judgment affirmed.