
    Kellers v. Reppien.
    Under our system all distinctions as to forms of actions are wholly disregarded in bringing suits m tho District Courts; and still less regard to forms is required in bringing suits in Justices’ Courts.
    It is wholly immaterial by what name a justice of the peace may call an action, if the facts entitle the plaintiff to a judgment.
    In determining whether a ccrtioiari shall be issued to remove a civil ease from a Justice’s Court to tho District Court, substance only, and not form, should be regarded; if justice has been done between the parties the judgment should not be disturbed. (Noto 7:j)
    The proceedings of tho .Justice’s Court will’be looked to for the purpose only of determining whether the certiorari was properly issued; that being determined in the affirmative, tho case must be tried de novo.
    
    Error from Galveston. This was an action originating in a Justice’s Court, and commenced by attachment. Tlic demand on which the attachment issued was as follows:
    “ Mr. Carl Reppien to John Kellers, Dr.
    “ For one gold watch and chain to yon delivered for repair, and
    “ not returned, but wrongfully detained,.$100 00.”
    Tho demand, mentioned in the citation issued at the same time with the attachment, was as follows:
    “To answer the complaint exhibited against him by John Kellers, plaintiff, “suing to recoyer one hundred dollars for the wrongful detention and “conversion by said Reppien of a, certain watcli and chain, the property of “ said plaintiff.”
    A motion was made in the. Justice’s Court, and also in the District Court, to quash or set aside the attachment oil the ground that it could not issue in the case of tort. The motion was overruled in both courts, and exceptions taken.
    On the trial in the District Court it appeared in proof (the parties were both sworn, as well as other witneses) that a watcli and chain liad been delivered to plaintiff in error to repair. It further appeared that a burglary liad been committed upon the shop in which plaintiff in error conducted iiis business, and the watcli and chain stolen. The court admitted evidence offered to prove negligence in keeping the property, with a view to charge defendant below on a contract of bailment, and charged the jury that if the watch was stolen by the negligence of tlic defendant the plaintiff was entitled to recover.
    
      Sherwood §■ Goddard, for plaintiff in error.
    The points in this case are: First. There is no evidence to sustain the cause of action as the same is set forth in the citation.
    Second. The attachment should have been quashed and set aside, tho demand being one on which an attachment could not issue.
    
      Third. The action being- for the. wrongful conversion of tiie property, it could not be changed on the trial into an action on the contract of bailment, no notice having been given that such was the nature of tiie action. The court below erred'in admitting the testimony and in the instructions to tiie jury on this point, as well as in tiie refusal to charge the jury as requested.
    Article 1(595 (Hart. Dig.) provides that the Justice shall keep a docket, in which shall be entered, among other things, “a brief statement of the nature “of the plaintiff’s claim or demand.” This was done, as appears by the statement filed, and also as recited in the process. This was the judicial notice to the defendant below as to what he had to meet.
    
      II. N. fy M. M. Potter, for defendant in error.
    The record shows no cause why the judgment- should be reversed. The case presented is one of bailment, and the bailee (the defendant) was a paid agent, and as such was bound to use ordinary care about the safeguard of the property placed in his hands. (Seek v. Maesteer, 1 Campb. B., 138 ; notes to case of Coggs v. Barnard, 1 Smith’s Leading Cases, top page 173, et seq.)
    
    The action against a paid agent may be cither assumpsit or case. The contract on the part of tiie bailee is for tiie performance of a legal duty. (Bank of Orange v. Brown, 3 Wend. B., 158; McCahan v. Hirst, 7 Watts B., 175.) The affidavit on which the attachment issued swears to a debt due and states a ease proper for an attachment. (I-Iart. Dig., art. 25 ; Hunt v. Morris et al., 4 Mart. B. O. S., 517; wo ask the attention of tiie court to this case, as it grew out of a bailment.) And we do not presume that the particular form or words used by the justice in the citation to be served on the defendant, so long as a cause of action is stated, can vary or take away the plaintiff’s remedy,' more especially as the plaintiff has nothing to do with making out or issuing the process, and a petition stating the plaintiff’s case was not necessary. This court lias decided that the distinctive forms of action known to the common law are not in force in this State; that “every action is a special action on the “particular case.” (Caldwell v. Haley, 3 Tex. B., 319.) Certainly greater precision is not necessary in a citation from a Justice’s Court than in a petition in the District Court.
   Lipscomb, J.

The objections of the appellant upon which he seeks to reverse the judgment of the District Court in this case are all predicated upon the supposition that the suit is for trover and conversion, and that the evidence is such as shows it to be a bailment. The objections to the refusal to quash the attachment, to the evidence, to the charge of the court, and to the verdict are all rested upon that predicate. If this suit had been instituted in the District Court, and it had been subjected to the common-law forms, where the distinction between the different forms of action are strictly guarded and enforced, there would be soundness in the objection. But under our system all those distinctions are wholly disregarded in tiie bringing of a suit in the District Court, and still less regard to forms as required in tiie court of a j ustice of the.peace. This suit was instituted iu the court of a justice of the peace, and a verdict and judgment were given in favor of the plaintiff. It was then taken by a writ of certiorari to tiie District Court and tried by a jury, and a verdict again for tiie plaintiff, and the whole proceedings show that the suit was for the same cause in both courts. It was for tiie value of a gold watcli; and it is wholly immaterial by what name the justice of the peace thought proper to call tiie action, if the facts entitled the plaintiff to a judgment. In the proceedings before inferior tribunals of such limited jurisdiction in civil suits, all that a revising court will look to is the substance of their acts, and not to forms; and, if justice has been done between tiie parties, will very rarely disturb their judgments. And, furthermore, where a case, after judgment in the Justice’s Court, is taken by a writ of certiorari to the District Court, tiie regularity of the proceedings will only be looked to for tiie purpose of determining whether there was sufficient grounds shown to support the certiorari. This question settled and sustained, the case is again tried upon its merits; and the irregularities of the justice’s proceedings cannot he noticed. "We believe that there is no error in the judgment and proceedings of the District Court, and that the same ought to he affirmed.

Note 73. It is not sufficient for a petition for a certiorari to show that the petition had a good cause of action or ground of defense; but it must also show that the cause of action or ground of defense was properly presented to the justice, or a sufficient legal excuse must be shown for the failure so to present it. (Hope v. Alley, 11 T., 259; Criswell v. Richter, 13 T., 18; Ingo v. Benson, 15 T.,315; Peabody v> Bentillo, IS T.,313; Robinsonv. Lakey, 19 T.,ISO; Givens •y. Blocker, 23 T., 633; Doyle v. Glasscock, 24 T., 200; Clarke v. Hutton, 28 T., 123.) The petition for a certiorari should set out all the evidence before the justice; it should state some material error in the proceedings, that injustice had been done the petitioner, or that he had been unable to avail himself of some legitimate defense. (Oldham v. Sparks, 28 T., 425; Cordes v. Kauffman, 29 T., 179.)

Judgment affirmed.  