“ Plaitiff alleges that his slave, Have, left his premises without permission on the 29th December, 1856 ; that he believes said slave was carried from Shreveport by the steamboat St. Charles; that he was seen on said boat-on the 5th, 6th and 7th of January, 1857, while lying in the port of New Orleans, carrying boxes, &o., on said boat on the clays last mentioned. He further alleges his fear and belief that said slave had been enabled to escape from the State by being carried away as aforesaid; damages to the amount of $1500, the value of the slave, and prays for judgment for said amount against said boat, with recognition of lien, &c.

The defendants pleaded a general denial, and the court rendered a judgment for their costs.”

The plaintiff having recovered the slave during the pendency of the suit, offered to prove on the trial by a witness the amount of costs, and money expended by him in recovering possession of the slave, and the value of the services of the slave per month. Said testimony was objected to by defendant’s counsel on the ground that the same was irrelevant, and there was no allegation authorizing any such evidence. The testimony was received notwithstanding the objection, but it appears to have been subsequently disregarded by the judge, who rendered judgment in favor of the defendant. We are of the opinion that the district judge did not err in receiving the testimony. The fact proven by the defendant by the cross-examination of the witness Parnell, that plaintiff had recovered the slave since the institution of the suit, justified the introduction of proof of the expenses in recovering the slave, and the value of his services whilst he was absent.

The defendant by the proof, defeats the claim for the principal portion of the damages, but on the recovery of the possession of the slave pendente lite, has not changed the nature of the act charged in the petition, but lessened its injurious effects to defendant, there is no good reason why the proof, should not be received and when received produce its effect. Dufour v. Camfrancq, 8 Martin, 307.

The action is brought for the value of the slave, and not for the fine of $500 *416given by section 2d of the Act of 1840, p. 90. If the plaintiff had intended to claim the penalty he should have specially claimed it in his petition.

The proof is sufficient to entitle the plaintiff to recover of the defendant the sum of $78 90, the value of the services of the slave while absent and the costs of his recovery.

It is, therefore, ordered, adjudged and decreed by the court, that the judgment of the lower court be avoided and reversed and that the plaintiff recover and have judgment against said W. D. Bateman for said sum of seventy-eight dollars and ninety cents and plaintiff’s privilege upon said steamboat St. Charles bo recognized to secure the same. And it is further ordered, that the defendants pay the costs of both courts.