delivered the opinion of the court.
John Alexander, who had been keeping a saloon at Sullivan, in Moultrie county, sold his saloon stock to the defendant, J. C. C. Baker. Previous to the sale he had ordered from Paul Jones & Company of Louisville, Kentucky, a barrel of whisky, to be shipped to him at Sullivan. After the sale by Alexander to Baker the barrel of whisky ar*73rived at Sullivan, and Baker claiming to be the owner thereof began suit before a justice of the peace at Sullivan in replevin, and thereby obtained possession of it. That suit was taken by appeal to the Circuit Court and was there dismissed, and thereupon this suit was begun upon the’ replevin bond given by Baker and Purvis, his surety, to Bawdy, the constable, who executed the writ of replevin. The only plea filed by the defendants was that they had made return of the property. The proof shows beyond a peradventure that the property returned by Baker was a barrel of water, and not the barrel of whisky; the proof further shows that the barrel of whisky was of the value of §93.36. The penalty of the replevin bond was §180. It is manifest that there is no defense to this suit. The court ought not to permit further cost and expense to these plaintiffs, and it will therefore be ordered that the judgment of the Circuit Court be reversed, and that judgment be entered in this court for the plaintiff for $180 debt, to be satisfied by the paj^ment of $93.36 damages and for all costs, and that execution issue therefor.
Reversed and judgment here.
Finding of facts, to be incorporated in the judgment of the court:
We find that the defendant made no return of the barrel of whisky replevied; that it was of the value of §93.36, that the replevin bond was in the penal sum of- $180, and that plaintiff has sustained damages to the amount of $93.36, and is entitled to judgment accordingly.