
    The Indianapolis and Cincinnati Railroad Co. v. Wilsey.
    Pleading. — In an action, before a justice, to recover the value of cattle killed by a railroad company, the complaint should aver that they were killed in the county, and, before the plaintiff, can recover, his proof must establish the fact.
    Practice. — In such an action, when appealed, to the Circuit Court, it would be error to dismiss the cause because the justice had not copied the cause of action upon his docket.
    APPEAL from the Marion Circuit Court.
    
      Thomas A. Hendricks, Oscar B. Hord, and Scobey &; Pound, for the appellant.
    
      R. L. Walpole, for the appellee.
   Worden, J.

Suit by the appellee against the railroad company, to recover for a cow killed by the ears of the company upon the road where it was not fenced. The suit was brought before a justice of the peace of Marion county, and appealed to the Circuit Court. In the latter Court the defendant moved to dismiss the cause, because the justice had not copied the plaintiff’s cause of action on the docket, as directed by the 18th section of the justices’ act. 2 R. S. 1852. p. 453. This motion was overruled. In this we think there . was no error.

Trial, finding and judgment for the plaintiff, a new trial-being refused.

We think it is hardly sufficiently averred that the cow was killed in Marion county, and the evidence wholly fails to show that the injury complained of was committed in that county.

This defect in the proof is fatal to the recovery. The Indianapolis, &c., Railroad Co. v. Renner, 17 Ind. 135.

Per Curiam.

The judgment below is reversed, with costs.  