Newhall

The complaint in this action contains two counts in indebitatus assumpsit, the first for pasturing 1,500 head of cattle from the 20th day of March to the 5th day of May, 1877, and the second for pasturing “ a large band of cattle ” from the 20th day of February to the 5th day of May, 1877. Trial before a jury, and verdict for plaintiff in the sum of $900. The case is brought before this Court on appeal from the judgment and from the order of the Court below, denying defendant’s motion for a new trial.

In both counts of the complaint, an express promise on the part of the defendants is alleged, but the evidence fails to establish an express promise, and this is the first point made on appeal. It is claimed on behalf of the appellants, that it was *23 incumbent on the plaintiff to prove an express promise, as such promise was averred in both counts of the complaint. Such was not the rule under the common-law forms of pleading, and is not the rule under the Code of Civil Procedure.

“Mo distinction exists in pleading between an implied promise and an express one ; it is true that in evidence the law in many' cases implies from certain facts that a promise has been made; but in…