delivered the opinion.

This was an action upon the case for a fraud in the sale of a mare. The jury was sworn to try the issue, and a verdict and judgment were rendered for the defendant, from which the plaintiff prosecutes this appeal.

There appears to have been no plea filed, nor issue joined between the parties. The cause of action, fore, alledged in the declaration, remained unanswered, and consequently bo verdict or judgment could be rendered for the defendant, as was decided in the case of Everhart’s adm’r. vs. Hickman. 4 Bibb 341.

The judgment must, therefore, be reversed with costs and the cause be remanded, that the verdict may be set. aside and new proceedings had, not inconsistent with this opinion.