This was an action of trespass, for taking and detaining certain tools of the plaintiff, upon which the defendant took the statutory issue. After testimony upon both sides, as to the ownership of the property, the plaintiff introduced a witness who testified-that he saw the box of the plaintiff, broken open by one Mizer, under the defendant’s direction, and under the authority, of an alleged warrant for that purpose. The defendant objected to the evidence thus given, “ as to the manner of taking the tools,” but it was overruled. The same witness having further stated that he was summoned by Mizer, to assist in the execution of the alleged warrant, and having testified his belief of its conformity with a copy which purported to be sec out in a transcript then before the court, it was permitted to be read to the jury, as follows :
“State oe Missouri, Camdex Couxty :
To the constable of Lick township, greeting : We command you to search and seize a certain lot of tools, consisting of five chisels, two augers, and one mortising axe, belonging to James Brice, supposed to be in the possession of John B. Halsted, or anywhere in the township, and give them up to said James .Brice. Given under my hand, this 29th day of December, 1848.
John Atojxly, J. P.
■ At the risk and request of the plaintiff, I authorize Hartwell Mizer, to execute, and return this writ. , Joint Atchly, J. P.
Justice’s fee 15 cents.”
“I return the within writ executed — tools found.
Hartwell Mizeb.”
, “I, J. J. Thrailkill, do certify that the above is a true copy of the , original writ, as appears on file in my office, this 6th day of October, A. - D. 1849. J. J. Theailkill, J. P.”
There being no testimony of any character, denoting that there had been any previous investigation as to the ownership of the property described in the warrant, we can only conclude that there was none. The plaintiff consequently objected to the reading of the paper as above set forth, and that objection being overruled and excepted to, he next moved to exclude it from the consideration of the jury, which was in like manner overruled and excepted to. The court thereupon (predicated, in part, upon other testimony, which it is not deemed necessary to copy here) instructed the jury without objections, as follows :
“ If the jury believe from the evidence, that the tools bad not been actually sold by Brice to Halsted, but at the time Brice took them they still belonged to him, they ought to find for the defendant, although he may have caused the Chest or box of plaintiff to, he broken open to get them. And unless the jury believe from the evidence, that Brice sold the tools to Halsted, and delivered, or permitted Halsted to take possession of them in consequence of such sale, they ought to find for the defendant; and if the jury believe that the tools still belonged to Brice, it is immaterial, in this suit, how he got possession of them.”
The jury having been allowed, without objection at the time, to receive and find a verdict upon the instructions of the court, thus given, neither the propriety of such instructions, nor of a verdict found in accordance with them, could, for any error subsequently suggested or alleged, be here reviewed. It is not questioned, however, but that to maintain the action óf trespass, under such a declaration as the present one, the plaintiff must have been the owner of the property taken from him. The instructions being therefore well enough, and the whole question therefore, narrowed to the admission and subsequent non-exclusion of the so-called warrant of the justice, it may suffice to say, that whilst it would seem that it could not possibly enlighten, it is not for us to determine how far its assumption, and recital of the ownership of the property, as being in Brice, may have' confused, mislead or influenced the jury Upon that question — the only legitimate one in issue. But for that, it might possibly be passed by as one of the comparatively harmless irregularities into which courts sometimes degenerate. Beyond that it seems oppressively apparent, that a paper thus issued, served, returned and certified was utterly inadmis*123sible for any purpose, 'whether in justification, excuse or mitigation. Admitting that it may have been founded upon the proper “ oath ” of the party, as prescribed by the statute, it was nevertheless not only informal, insufficient and absolutely illegal upon its very face, but its execution was delegated to, and assumed by, a person to whom authority was not only not given, but to whom it was expressly interdicted. The first four sections of the ninth article of the “ Act to regulate proceedings in criminal cases,” being the only ones upon which we can suppose the proceeding to have been predicated, however much may at times be deferred to the inartificial irregularities of subordinate magistrates, it ought not to have been overlooked that in this case there seemed to have been an apparently contemptuous disregard of the law throughout. Even in the manner of certifying the alleged warrant, there is nothing from which it can be even legitimately inferred that the justice who makes the certificate became possessed of “the docket and papers” of the former justice in such manner as to impart the least validity to his certificate— so that if even the original pretense of a warrant might have been -read, for the purpose ingeniously yet mistakenly argued by the counsel for the appellee, the unauthenticated paper alleged to contain a copy of it could not be. I am unable, however, to perceive anything out of the way in the testimony which was incidentally brought out by the plaintiff, “ as to the manner of taking the tools ”—certainly nothing to lay a foundation broad enough for the admission of such a transcript, either in its justification, excuse or palliation. If indeed, the defense stood upon that instead of the sole question of ownership, which the warrant was at least calculated to confuse, instead of elucidate, such a transcript, covering such a warrant and such a service of it, ought rather to augment than mitigate the damages. The admission of that transcript being therefore an error which cannot be pronounced wholly harmless, although it is possible.that it may not, in any material sense, have influenced the finding of the jury, this court may regret, without feeling itself authorized to forego the obvious duty of reversing the judgment aud remanding the cause, which is done accordingly.