The opinion of the court was delivered by

This was an action brought by Isaac Norris against Joseph Hannum, a justice of the peace, for damages alleged to have been sustained by reason of the wrongful issue of a summons and writ of replevin.

In a justice’s court in this state, the summons and the writ of replevin in an action of replevin are substantially one and the same writ. Both are issued at the same time and on the same piece of paper — the summons portion coming first, and the order to seize the property coming afterward, as an addendum, to the summons. (Justice’s Code, §58.) This writ of summons and replevin is not issued until a certain affidavit and a certain undertaking are executed and filed with the justice. (See said §58.) Section 57 of the justice’s code also provides, that “the justice shall not issue a summons” in replevin “until there has been executed in his office” the undertaking above mentioned. (Gen. Stat. 788.) And section 70 of said code provides, that “if any justice shall issue a writ to replevin property as is provided by this act, without the affidavit and undertaking being executed and filed in his office as is provided in this article, the same shall be set aside at his costs, and he shall be liable in damages to the party injured.” (Gen. Stat. 791.)

The justice in the present case, however, did not observe these rules, but issued “ a writ to replevin ” the property of Norris without any undertaking having been first executed or filed in his office. Under the writ so issued, the constable seized and took into his possession the property mentioned in the writ, to wit, “one iron-gray mare,” and thereby deprived Norris of the possession and use thereof, to his injury. The property belonged to Norris. Now, under said statutes, we think that Hannum, the justice, became liable to Norris just as soon as the constable seized said property. Hannum committed the wrong when he issued the writ, and Norris was injured when his property was seized and taken from him by the constable. Therefore, Norris’s cause of action against Hannum accrued simultaneously with the seizure of Norris’s property by the constable. What the measure of Norris’s damages might be, would, of course, depend upon the subsequent circumstances. If the property had been immediately returned to Norris, and if the replevin proceedings had been immediately set aside at the cost of the plaintiff in replevin, or at the cost of the justice, then Norris’s damages would have been merely nominal. But if Norris lost his mare entirely, as was the fact in this case, and lost her, not by the final judicial determination of any court of competent jurisdiction, as was also the fact, then the measure of his damages would be at least the value of the mare. For the purposes of this case, we shall consider sáid writ of summons and replevin as perfect in every respect, except that it was issued before any undertaking was executed or filed with the justice ; but such was not the case, however. It was dated and issued only two days before the time fixed for the defendant to appear for trial.

The defendant in the present case, Hannum, set forth in the second defense of his answer, that after said writ of summons and replevin was issued, and before trial or judgment, the plaintiff in replevin deposited with the justice a sufficient amount of money to secure Norris, and afterward executed and filed with the justice a sufficient undertaking. As to depositing money in lieu of an undertaking, see Shamokin Bank v. Street, 16 Ohio St. 1, 9, 10. He also, in said second defense, speaks of an appearance in said replevin suit, by Nor-, ris, as follows: “That at the time of the said trial and the appearance of said Norris before said justice,” etc.; and, “that after the appearance of said plaintiff and defendant in said replevin suit,” etc. Now, he does not tell us in said second defense, or elsewhere, what kind of an appearance Norris made in the replevin suit. Norris’s counsel in this court, however, says that it was a special appearance to contest the jurisdiction of the justice, and as nothing appears to the contrary, we shall now construe it to have been such. But would it make any difference whether it was such an appearance or a general appearance? The defendant also tells us in said second defense that Norris appealed said replevin suit to the district court.

The court below sustained a demurrer to said second defense, on the ground that it did not state facts sufficient to constitute a defense, and it seems to us that the ruling of the court below was correct. The defendant did not allege that the property belonged to the plaintiff in replevin, or that it was given to him in the replevin action by the judgment of the district court, or by the final determination of any court, or that it was ever returned to Norris, or that Norris ever received any compensation therefor, or that settlement of the matters connected with the replevin of said property had ever taken place. Indeed, he did not allege anything that would be a complete defense to the plaintiff’s action, nor anything, even, that would be taken or received in mitigation of damages.

The trial in the court below was on the issues raised by the plaintiff’s petition and the defendant’s general denial. What was proved or what was disproved we cannot tell, as the evidence has not been brought to this court. As the finding, however, was in favor of the plaintiff and against the defendant, we must presume that all the allegations of the plaintiff’s petition were proved. The judgment was rendered in favor of the plaintiff below, and against the defendant, for $80 and costs, and there is nothing in the record showing the judgment to be erroneous, and therefore it will be affirmed.