delivered the opinion of the court.
This was an action in the nature of trespass for taking and carrying away the plaintiff’s goods; the defendant not appearing, an interlocutory judgment was taken against him at the return term of the writ, and at the succeeding term an inquiry of damages was had and the judgment was made final; but afterwards, during the term, on the appearance and motion of the defendant, the judgment was set aside and the defendant was permitted to answer the petition. A trial was thereupon had, resulting in a verdict and judgment for the plaintiff, and defendant has brought the case here by writ of error.
*328The petition alleged and the answer denied the plaintiff’s ownership of the property in dispute at the time of the alleged trespass, and this was the main issue made by the pleadings. On the trial, the plaintiff having given evidence tending to prove a purchase of the property from one Walker (under whom the defendant likewise claimed by purchase at an execution sale), the defendant offered testimony to show that the sale from Walker to the plaintiff was colorable and fraudulent as against the creditors of Walker; but the testimony was rejected by the court on the ground that it was irrelevant to the issue.
It is insisted by the respondent, that the fact sought to be proved is such “ new matter consisting of a defence,” as ought under the practice act to have been specially pleaded in order to its admission in evidence.
Where a cause of action which once existed has been determined by some matter which subsequently transpired, such new matter must, to comply with the statute, be specially pleaded ; but where the cause of action alleged never existed, the appropriate defence under the law is a denial of the material allegations of the petition; and such facts as tend to disprove the controverted allegations are pertinent to the issue. In the cause at bar, the rejected testimony, if true, disproved the respondent’s ownership of the property, and thereby showed the cause of action alleged had never existed.
The respondent insists that the Circuit Court erred in setting aside the first judgment, and in permitting the plaintiff in error to answer; and asks that, in case of a reversal of the last judgment, he be restored to his rights under the first, without passing upon the question whether the court erred.
We are precluded from giving the relief asked, as well because it does not appear that the respondent saved his exceptions to the action of the court, as for the further reason, that having followed up h'is suit, and prosecuted it to final judgment after the commission of the errors complained *329of, he must be deemed to have waived his Rights under the first judgment.
The Circuit Court erred in rejecting the evidence offered by the plaintiff in error, and for this cause the judgment is reversed and the cause remanded for a new trial.
The other judges concur.