delivered the opinion of the Court:
It is clear, from the evidence offered, that on the merits of the case plaintiff was entitled to recover the property replevied; that he had bought and paid for it, and was in fact the owner. The property, in the first instance, had been seized by defendant, who was an acting constable, on a writ of attachment issued in the suit of Holte against Charles Shinkle, and it is alleged in the plea that plaintiff had impleaded him, the defendant, before'a justice of the peace, “in a certain suit, action *163or interpleader for the taking and wrongfully detaining from said plaintiff of the very same identical goods and chattels, and each and every one of them, in each and every count of said declaration mentioned,” and that such proceedings were thereupon had before such justice that the issues joined on the plea were found against plaintiff and in favor of defendant, and judgment was rendered against plaintiff for costs.
There is no evidence to sustain the averments in this plea. The case in which plaintiff interpleaded was ifolte against Charles Sh inkle, and to which defendant was in no way a party. He was the officer that served the writ of attachment and other process in the cause. It does not appear that plaintiff had interpleaded this defendant in any previous action concerning the property involved in this litigation. Whether plaintiff was concluded by interpleading under the statute in that action, had this defense been set forth by appropriate pleading, is a question upon which we need not now express an opinion. It is fatal to the present defense that there is a ■variance between the evidence offered and the averments of-the plea, which renders the testimony inadmissible under the issue joined.
This view renders it unnecessary to remark upon other points made on the argument.
The instruction given for plaintiff, to which exception was taken on the trial, has reference to the defense under the plea of former recovery, and as we think the evidence offered could, with great propriety, have all been rejected, the instruction on that branch of the case, whether technically correct or not, did no harm.
On the evidence the judgment is right, and must be affirmed.
Judgment affirmed.