delivered the opinion of the Court:
The first point made by plaintiff in error is well taken. The record shows the suit was commenced August 16,1865, and the proof is, that the heifer, worth $30, was killed in October thereafter, and the hog was killed,in September, one month after the commencement of the suit, and of the value of $30.
The plaintiff recovered the value of these animals, which he had no right to do.
As to the mare worth' $170, there is some discrepancy in the proof, and we leave that for the consideration of another jury-
Upon the other point, there seems to have been no positive proof that the plaintiff in error operated the railroad, but it is inferentially shown, by the fact that the plaintiffs were incorporated by the name they bear, at the session of the legislature next previous to the injury complained of, so that, it must have been their road that did the injury, if no other road was operated in that section of the county, of which there is no suggestion either way. The inference, under the circumstances, is a fair one, that it was the road of plaintiff in error.
For the reasons given, the judgment must be reversed and the cause rémanded.
Judgment reversed.