This action was commenced before a justice of the peace. It was brought to recover damages against the defendant company for killing a horse. Upon appeal to the Common Pleas it expanded into a breach of contract for not maintaining a fence along the right of way or road of the company. While it is true that, upon an appeal from the judgment of a justice of the peace, the case is tried de novo, it is also true the cause of action must remain the same. This has been the law since Moore v. Wait, 1 Binn. 219. The judgment of nonsuit was properly entered.

Affirmed.