
    Shall vs. Lathrop.
    After a cause has been tried before a justice and submitted for final decision, though the judgment rendered by him be in form a nonsuit, it will bar a second action for the same cause.
    A variance between the declaration and proof must be objected at the trial, or it will be regarded as not in the caso.
    Accordingly, where a cause was heard before a justice on the merits, who took four days to make up his decision, and finally entered judgment of nonsuit against the plaintiff, because of a variance between the declaration and proof: Held, that the variance .not having been objected at the trial, the judgment was erroneous, and should be reversed; and this, though the evidence Was conflicting as to the merits, so that the justice might properly have rendered judgment for the defendant on that ground.
    Where, in such case, the judgment of the justice was reversed by the common pleas ; held, no ground for interfering with the decision of the latter court, that their return did not show whether they had proceeded for error of law or of fact.
    Even though a court be required by statute to annex a written statement of their decision, together with the reasons, to be returned on error; yet, if the cause be brought to a hearing without such return, the omission is no ground of reversal, Per Cowen, J.
    Error to the Herkimer C. P. Lathrop sued Shall before a a justice of the peace, and declared in assumpsit for a breach of warranty on the sale of a horse. After issue joined, the cause was tried on the merits, and submitted to the justice. The evidence upon the question of unsoundness was conflicting ; and, after four days consideration, the justice rendered judgment of nonsuit against the plaintiff, on the ground of a variance between the declaration and proof; although no objection for this reason had been made on the trial., The common pleas reversed the judgment on certiorari, and Shall sued out a writ of error. It was not stated in the return to the writ of error on what ground the judgment of the justice was reversed.
    
      Hammond fy Bates, for the plaintiff in error.
    
      H. Adams, for the defendant in error.
   By the Court, Cowen, J.

Clearly, the justice erred in rendering judgment on the ground of variance. Such an objection was not in the case, for want of being taken by the defendant at the trial. (Pike v. Evans, 15 John. 210 ; Briggs v. Dwight, 17 Wend. 71.)

The judgment was the more injurious to the plaintiff, inasmuch as in legal effect it was a judgment on the merits ; and operated as a final bar to another action. (Elwell v. McQueen, 10 Wend. 519 ; Hess v. Beekman, 11 John. 457.)

It is no answer that the proof was conflicting ; and so formed a case which upon a judgment on the merits would have been beyond the reach of a certiorari. Such a judgment was not rendered. The justice declares in his return that he acted on the variance, and mentions that as the sole ground.

We cannot reverse the judgment of the C. P. on the abstract ground that they have assigned no specific reason for their judgment of reversal, viz. whether they went on the fact or the law. The only effect of the omission was, that either party might perhaps have moved an amendment, and so had the reason returned. (Anon. 13 Wend. 99.) Even where a court is required by statute to annex their decision and the reasons therefor in writing, to be returned on error, yet if the cause be brought to a hearing without such return, the omission cannot be alleged for error. (Judah v. Stagg’s Ex’rs, 24 Wendell, 238.)

Judgment affirmed.  