This was an action by the appellee against the appellant, commenced originally in the Court of Common Pleas, to recover damages for the killing of a horse by the defendant, upon her road; the same not being properly fenced. Judgment for the plaintiff. The suit is evidently based upon the statute of 1853, making railroad companies liable for animals thus killed, without reference to the question of negligence. The complaint avers no negligence, or willful misconduct. The statute above referred to, does not apply to causes commenced in the Court of Common Pleas. The Jeffersonville Railroad Co. v. Martin, 10 Ind. 416. There was no demurrer filed to the complaint, but it is radically defective, and the defect is reached by demurrers filed, and sustained, to certain paragraphs of the defendant’s answer, to which the defendant excepted. Vide, Smead v. The Indianapolis, &c. Railroad Co., 11 Ind. 104. This cause originated and was tried, before the act of 1859 took effect.

The judgment is reversed, with costs.