Action by the appellee against the appellants to recover damage for the killing of a steer by the engine and cars of the appellants upon their road where it was not fenced.

The' action was brought before a justice of the peace, where a demurrer was filed to the complaint. On appeal to the Common Pleas, the cause was tried by the Court without any express notice being taken of the demurrer, and there was a finding and judgment for the plaintiff be*407low. It is insisted that error has intervened in the trial of the cause without disposing of the demurrer. We think from the whole record, the demurrer may be considered as having been overruled.

The facts in the case are substantially the same as in the case of the same appellants v. Townsend, 10 Ind. R. 38, and involve the same question as is therein decided, and adhering to the decision therein, the judgment must be affirmed.

The judgment is affirmed with 5 per cent, damages and costs. -