The act of 1824, to regulate pleadings at common law, enacts, that “no cause shall be reversed, arrested, or otherwise set aside, after verdict or judgment, for any matter on the face of the pleadings not previously objected to; Provided, the declaration contains a substantial cause of action, and a material issue be tried thereon.” Clay’s Dig. 322, § 53. Without undertaking to scan the declaration in the present case with particularity, it is perfectly certain, that the common counts at least set out a good cause of action. The judgment entry shows, that the issue tried threw upon the plaintiff the burthen of making out his case; this is sufficient to indicate its materiality, and to bring the case within the salutary influence of the act cited.
The affidavit and attachment merely alledge the indebtedness of the defendant in a sum certain, without stating how it originated or is evidenced; several of the counts at least, charge that the defendant is indebted to the plaintiff, and thus far we can discover no discrepancy between the writ and declaration. All the counts are professedly in as*463sumpsit, so that there is no misjoinder, even if it were allowable to make this point after verdict.
In Cummings v. Edmundson, 5 Porter’s Rep. 145, the statute which authorizes a plaintiff to be non-suited where he institutes a suit for a less sum than the court can take jurisdiction of, or demands a greater sum than is due, on purpose to evade the act, unless he shall make an affidavit that the sum for which the suit is brought is really due, but for want of proof he failed to recover, was fully considered. We there said, “ the act certainly guards the plaintiff from any injury from an improper exercise of the discretion reposed in the court by permitting him, in cases where an opinion prevails that he has improperly used the jurisdiction of the court to avoid the consequences, by making the requisite affidavit; and we do not hesitate to say, that it would be error to render a judgment of nón-suit, when such affidavit was interposed; but in all other cases under the latter clause of the statute, the action of the court being discretionary, and to be governed by circumstances, cannot be the subject of revision here.” This decision has been repeatedly followed, and very clearly determines, that the refusal of the circuit court to non-suit the plaintiff in a case like the present is not a fatal error.
Although the plaintiff may have instructed the defendant not to sell his mare for less than five hundred dollars, and the latter undertook to follow his instructions, yet if he made a sale at a less price, the sum at which he was authorized to sell, would not necessarily be the measure of damages which the plaintiff was entitled to recover. In Austill & Marshall v. Crawford, 7 Ala. Rep. 335, the principal instructed his factors, in whose hands he placed cotton, not to sell for less than fourteen cents per pound: Held, that a disregard of this instruction, did not impose a liability on the factor to pay the difference between that price and a smaller sum at which the cotton was sold by him; but the actual injury sustained by the principal, was the criterion of the damages, and this could be ascertained by proof of the price at which cotton of the same quality was sold during the season. See also Webster v. De Tastel, 7 T. Rep. 157; Short v. Skipwith, 1 Brockb. Rep. 103.
*464These citations are decisive to show that the circuit court did not lay down the law correctly in the first charge to the jury, in instructing them, that if a sale of the mare was made for less than $500, the defendant should account for her at that price. Her value was the injury sustained by the plaintiff, and by this, the court should have charged the jury, his recovery should have been graduated.
It was not necessary for the plaintiff to prove how much the defendant received for his mare, or if he had exchanged her, to show a demand previous to the institution of the suit. The amount received by the defendant, we have seen, cannot determine the plaintiff’s damages ; therefore, it was unnecessary to adduce proof to this point, or do more than show the value of the animal. Neither the evidence adduced by the plaintiff, or defendant, show that the defendant was authorized to exchange the mare; but the reverse is fairly inferable.
The exchange then, was an act which made the defendant liable for her value — was in itself a conversion, and the defendant became chargeable to plaintiff without any step to he taken by the latter to perfect his right of action. This conclusion is the result of legal principles so clearly established, that it is needless to cite authorities to prove it. Whether an agent who has faithfully pursued his authority,, without placing himself in a position antagonistic to his principal, can be sued by the latter previous to demand and notice, is another question. For the error in the first charge to the jury, the judgment is reversed, and the cause remanded.