The plaintiff could not maintain this action, if the judgment recovered against him on his note given to the defendant for the price of the colt were now in force. He would have received, in the deduction of forty dollars from the amount of that note, his damages for the deception practised on him by the defendant in the sale of the colt, and have been thereby barred from any further remedy for that deception. Bwrnett v. Smith, 4 Gray, 50. But that judgment was vacated by the defendant’s appeal therefrom to the court of common pleas; and upon the entry of that appeal in that court, the present plaintiff withdrew his defence and was defaulted. Thereupon judgment was rendered against him for the full amount of the note, and he was left at liberty to prosecute this action. 1 Chit. PI. (6th Amer. ed.) 243.
As the court of common pleas entered judgment in this case for the defendant, that judgment is reversed and the case is to be sent to the superior court for trial.