
    [Philadelphia,
    January 27, 1828.]
    ESHER against FLAGLER.
    IN ERROR.
    Summons before a justice for damages not exceeding one 'hundred dollars, in holding and detaining a horse and selling him contrary, to law. On appeal, the plaintiff declared in assumpsit for money had and received. Held, to be regular.
    Writ of error to the Court of Common Pleas of Philadelphia county.
    This was an action of trespass brought by Gilbert Flagler, the plaintiff below and defendant in error, against Conrad M. Esher, the defendant below and plaintiff in error, by summons issued by John Thompson, Esq., a justice of the peace, under the act of assembly, entitled “ an act regulating the proceedings of justices of the peace and aldermen in cases of trespass, trover, and rent,” passed the 22d of March, 1814, for damages not exceeding one hundred dollars, in holding and detaining a horse and selling him contrary to law. After hearing, judgment was entered by the magistrate for the plaintiff for twenty-nine dollars; and the defendant appealed to the Court of Common Pleas. The plaintiff filed a declaration for money had and received. The defendant, Esher, obtained a rule on the plaintiff to show cause why he should not declare according to the circumstances of his case; which rule was subsequently dismissed by the court below. On the 13th of February, 1824, the plaintiff’s death was suggested, and Elizabeth Flagler was substituted as administratrix. A rule of reference was entered by the plaintiff below, and arbitrators chosen, who awarded for the plaintiff twenty-five dollars. On the 20th of October, 1824, judgment was entered nisi, and, on the 10th of November the judgment was made'absolute. On the 11th of November, 1824, a writ of error issued.
    The following errors were now assigned:—
    1. That the causé of action, before the justice, was founded on a tort; viz., trespass vi et armis, and that proceeded on in the Court of Common Pleas subsequently to the appeal, and contained in the declaration, was different, and founded on contract; to wit, assumpsit for money had and received.
    
      3. That the action was founded on the act of 1814, in relation to trespass, trover, and rent; and, the action in the Court of Common Pleas was proceeded in,under the act of 1810, in relation to debts founded on contract.-
   Per Curiam.

Where the declaration and the transcript agree ' in substance, we will disregard variances in form. Justices of th'e peace are not familiar with technical distinctions; and it would'be monstrous to suffer an error in the style of the action to deprive a party of his appeal. It, however, happens here, that the justice was even technically accurate in his notion of the action, which he styles, “ trespass for holding and detaining a horse and selling him contrary to law:” in other words, trespass on the case on promises, which is exactly the form of the action in the Court of Common Pleas, the plaintiff having counted for money had and received. Prom this one would be tempted to believe the justice had in his mind’s eye the familiar case of Longchamps v. Kenny, in which the price of a masquerade ticket, owned by the plaintiff, but sold by the defendant, was recovered in this form. But, wherever the,justice had-jurisdiction, in any shape, of the cause of action laid in the declaration, we will suffer no misconception of form to stand in the ¡way of the .appeal.

Judgment affirmed.  