This was an action of debt commenced before a justice of the peace. The statement of demand is that the plaintiff, as constable, &c., sold to the defendant, by virtue of a certain execution, a certain mare and saddle for the sum of 50 dollars, &c.; and that the defendant had refused to pay, &c. Plea, that the plaintiff did not deliver the mare and saddle as alleged. Replication, that the mare and saddle were delivered, &c. There was a second plea which need not be further noticed, it being a mere nullity. Verdict and judgment before the justice for the plaintiff. On appeal to the Circuit Court, the defendant obtained a verdict and judgment.
This was a suit for the price of goods sold, not for the price of goods sold and delivered. The plea, therefore, denying a delivery of the goods, was no answer to the declaration. The issue was immaterial, and the defendant, who made the *326first fault in pleading, has obtained a verdict. There must be a repleader.
W. A. Porter, for the plaintiff. J. W. Payne, for the defendant. Per Curiam.The judgment is reversed. Cause remanded, &c.