Opinion by

Appellant fails in his petition to state the issues involved in the action in which he seeks a new trial. We can gather that at the September term, 1869, of the Greenup Circuit Court appellee recovered against him a judgment for the delivery of a roan horse, or its value, one hundred and thirty-five dollars. But as to the nature of appellee’s claim of title or appellant’s grounds of. defense the whole matter is left entirely in the dark.

It is therefore impossible from the pleading to determine whether or not the newly discovered testimony is material. Appellant claims that it is, but such claim is a legal proposition, and not the statement of a fact. Such being the case, we can not adjudge that the Circuit Court erred in sustaining appellee’s demurrer.

It does not appear that appellant offered to amend. He therefore was not prejudiced by the dismissal of his petition. The injunction was properly dissolved.

Judgment affirmed.