#### W. B. McBride, Appellee, v. Assumption Telephone Company, Appellant.

(Not to he reported in full.)

Appeal from the Circuit Court of Christian county; the Hon. Thomas M. Jett, Judge, presiding. Heard in this court at the April term, 1916.

Affirmed.

Opinion filed October 13, 1916.

Rehearing denied December 2, 1916.

Statement of the ,Case.

Action by W. B. McBride, plaintiff, against the Assumption Telephone Company, defendant, for damages for the death of the plaintiff’s horse alleged to have been caused by the negligence of the defendant. From a judgment for plaintiff for two hundred dollars, defendant appeals.

The negligence alleged consisted in the defendant’s allowing a telephone wire attached to one of its poles, standing by the side of the highway, to sag over the plaintiff’s land in such a way that the plaintiff’s horse became entangled therein and was injured so that he died.

Taylor" & Taylor, for appellant.

J. E. Hogan and W. B. McBride, for appellee.

Abstract of the Decision.

1. Tbial, § 110 * —what a motion to exclude evidence on ground of variance must point out. A motion to exclude evidence and to instruct the jury to find the defendant not guilty on the ground that there is a variance between the allegation and proof must specifically point out in what the variance consists.

2. Limitation oe actions, § 119*—when question whether statute has run is for fury. In an action for the death of a horse, the question whether the action had been brought before the statute of limitations had run, held for the jury.

*

See Illinois Notes Digest, Vole. XI to XV, and Cumulative Quarterly, same topic and section number.

Mr. Justice Eldredge

delivered the opinion of the court.