The judgment in the common pleas was for less than the amount recovered before the justice, and the pleas erred in allowing the costs below. Bat this error is amendable. Robinson v. Hedge, 2 Pen., 688.

There should have been in this case a judgment reversing that before the justice. Hendricks v. Craig, 2 South, 569; Woodruff v. Budgely, 7 Hal., 367. But this being matter of form might be amended.

But a more serious error assigned is, that the state of demand contains no legal cause of action; and if this is so, it is fatal. Gould v. Brown, 4 Hal., 165.

The demand alleges that the plaintiff and defendant agreed, on the 15th January, to exchange horses — the plaintiff to take defendant’s mare, and defendant to take plaintiff’s horse — to be used and worked by each other three days; if each was satisfied they were to exchange the o'ne for the other, and if not, each was to return the other’s horse at the end of three days in good condition, &c. It then alleges that on the day, <§rc., aforesaid, each took the other’s horse for the purpose aforesaid, but the plaintiff not being satisfied with thedefendant’s mare, returned her to the defendant in good condition on the 20th January; but the defendant, within the three days, used the plaintiff’s horse so, &c., that he died in consequence, to the damage, «fee.

The objection is, that upon the face of the plaintiff’s demand it appears that the plaintiff did not return the defendant’s horse in three days, as by his contract he was to do if dissatisfied.

1 think the fair construction of the agreement is that if each kept the other’s horse after the end of three days, the exchange was completed. This they both did according to the state of demand, and the plaintiff could not afterwards repudiate it, and bring his action.

The judgment is reversed.