Suit by McAhren for animals killed by the cars, &e., of the company, commenced before a justice, where a demurrer was filed to the complaint and overruled; judgment for plaintiff. On appeal, no action appears to have been taken by the Common Pleas upon the demurrer; but a trial was had, and judgment for plaintiff.

It is insisted that the failure to take action upon the de*553murrer, was an error that should reverse the case. After the demurrer was overruled before the justice, a trial was had upon issues of fact, which the statute put in. Upon the appeal, the party demurring did not see proper to again bring forward the question upon the demurrer, but went to trial upon the issues of fact. We think this operated as a waiver of any right which he had, to have the demurrer determined. See The Indianapolis, &c., Railroad Co. v. Paramore, at this term (1).

The questions, other than the above, made in the case, are settled in the case of the same appellants v. Townsend, 10 Ind. R. 38, and The New Albany, &c., Railroad Co. v. Maiden, at this term (2).

The judgment is affirmed with 10 per cent, damages and costs.