delivered the opinion- of the Court. This is an .action of debt on a single bill, as appears from the declaration, for the payment of ¡£¡60 5 3J. The defendant pleaded general performance of articles of agreement, and the plaintiff replied by a protestation that the defendant hath not performed the articles of agreement.
The pleadings are altogether irregular. There is in fact no issue joined in the cause. There is the affirmance of the performance of articles of agreement, but there should have been an express negation of defendant’s plea. A denial, by way of protestation, is no denial. It is ever unavailable in the particular suit in which it is adopted, and the allegations protested against are in eñect admitted in the suit. 1 Chitty on Plead. 590. The tender of issue upon such a replication is therefore erroneous. There was in fact no issue for the jury to try.
But if there was an issue joined between the parties, it was an immaterial issue; for it is an issue joined on certain articles *275of agreement, which no whore appear in the pleadings, and the suit is brought on a single bill. Now the finding of this issue, either for the plaintiff or defendant, determines no one question which lias any relevancy to the action, and no judgment could be rendered on the verdict. Issue is taken, on a point different from the material allegation in the plaintiff’s declaration, and although fouud by the verdict, the merits of the cause are left undetermined, and the court could not tell for whom to render judgment.
The judgment is reversed, that the county court may award a repleader, and that substantial justice may be done between the parties.
JUDGMENT REVERSED, AND PROCEDENDO AWARDED.