Suit by Smith against The Terre Haute and Richmond Railroad Company, to recover for stock killed by tbe machinery of the road, in 1858. The suit was commenced in tbe Common Pleas, and the complaint did not allege negligence, but simply that tbe road was not fenced.

A demurrer to tbe answer reached back to tbe complaint.

Tbe cases of The Jeffersonville, etc., v. Martin, 10 Ind. 416; The Indianapolis, etc., v. Taffe, 11 Id. 458; and Indianapolis, etc., v. Kercheval, 16 Id. 84, are decisive that tbe action can not be maintained.

Tbe objections that there was a want of jurisdiction, and of a cause of action, may be raised, upon appeal.

Tbe judgment is reversed, with costs; cause remanded to be dismissed.