Suit, commenced before a justice of the peace, by McMahcm against the Indianapolis and Cincinnati Railroad Company, to recover the value of an animal killed upon the track of the road by a locomotive.
There was a demurrer to the complaint before the justice, which was correctly overruled; as the complaint, though defective, perhaps, if tested by the rules of pleading in the higher Courts, was sufficient in a justice’s Court.
The plaintiff recovered, and the company appealed to the Common Pleas. In that Court, the entry of record is, “Now come the parties by their attorneys, and by agreement a jury is waived, and this cause being submitted to the summary decision of the Court,” &c. The Court *423found for the plaintiff. It is now urged that it was error to try the issue of fact till the issue of law, raised by the demurrer, had been disposed of.
J. S. Scobey, for the appellants. L. Barbour, J. D. Howland, E. H. Davis, C. Wright, and J. C. Green, for the appellee.It may be doubted whether, the parties did not waive that issue, and treat it as out of the case, by the decision of the justice; but if they did not, it has been often decided that a submission of a cause to the decision of the Court, in the form in which it was made in this case, embraced a reference of both the issues of law and fact, and that the finding of the Court involved a decision of both.
And in this case, as we have seen, the issue of law was rightly found.
As to the issue of fact, it was proved that the animal was killed .by a locomotive, on the road between London and Shelbyville, at a point where the road was not fenced, and the value of the animal was shown.
Per Curiam.The judgment is affirmed with 10 per cent, damages and costs.