The right to maintain this action by Jones against this Railroad Company, is established by the case of Conger v. The Chicago and Rock Island Railroad, Company, 15 Ill. R. 366, a case, in its legal aspect, identical with this. The errors assigned in this record are, in refusing the second instruction asked for by the defendants below, the appellants here, to the effect that “ it was incumbent on the plaintiff below to prove the identity of the Joliet and Northern Indiana Railroad Company with the Oswego and Indiana Plankroad Company, with which the contract sued on was made; ” in refusing to give the second clause of the seventh instruction asked for by the appellants ; in refusing the fifth instruction; in not excluding from the consideration of the jury the deed from Jones to the Oswego and Indiana Plankroad Company, upon the motion of the defendants below; in admitting testimony after the deed had been produced, designed to prove verbal agreements made previously, touching the same subject matter; in refusing the motion for a new trial for the reason assigned, that the verdict was against law and evidence; and in refusing to arrest the judgment for the reason assigned, that the declaration did not state a legal cause of action.
As preliminary, we may notice here, that the bill of exceptions contains the declaration and pleadings in the cause, thus incumbering the record and occasioning costs for no good purpose. It is the office of a bill of exceptions to bring before the appel*226late court matters de hors the record only, not the pleadings of the parties, for they are intrinsic, and are necessarily on the record, without being preserved by a bill of exceptions. The costs of so much of this record as contains these pleadings in the bill of exceptions, should be taxed against the party who caused them to be put in it.
As to the first error assigned, the rule is, in all cases, that the best evidence of which the nature of the case is susceptible, must be produced; and another is, that the material averments of a declaration must be proved. The averment in this declaration is, that the defendant, “ then a corporation under the name of Oswego and Indiana Plankroad Company, received the deed for the land, and that defendant accepted the deed upon the condition therein contained, and expressly promised to build the fence.” The deed was made to the Plankroad Company, and the inquiry arises, where is the evidence that this company and the defendant are identical? The averment is, the defendant accepted the deed, by the name of the Oswego and Indiana Plankroad Company, and the testimony of Matteson and Elwood shows, that the defendant was the owner of the railroad up to June 4,1855, at which time it was transferred from the defendant to the Michigan Central Railroad. It is very true, where a deed is made to a corporation or individual, by a name different from the true name, the plaintiff may sue in their true name, and aver in the declaration that the defendant made the deed to them by the name mentioned in the deed. But that is not this case. The deed was made to the party by its true and proper corporate name, but there is no proof tending to show that the corporation now defending is the same corporation as that which received the deed. If it be- the fact, it is susceptible of proof. The mere averment of identity is not sufficient, and the plea of the general issue puts that fact, as well as every other one not protected by our practice act and rules of pleading, directly in issue. We think there is an entire absence of proof establishing this identity.
As to the second clause of the seventh instruction, we think there was no error in refusing it, as it is immaterial, so far as the duty of the defendants is involved, whether the fence they engaged to make would have formed “ a perfect inclosure for the sheep from and against the railroad,” or not. The duty, under the contract, was to build the fence; its effect or utility, when built, is another and different question. The liability of the company, in this action, for the neglect of this duty would depend entirely on the question of fact to be found by the jury, whether this neglect of duty contributed to the injury of which complaint is made.
*227The fifth instruction raises the question, as to which party the negligence is most properly chargeable.
It will be observed, that the declaration does not go upon the negligence of the defendants in running their train. It proceeds solely upon the ground of neglect to build the fence, by means of which the injury resulted by the destruction of the sheep. This being so, the question is still behind, though the defendants neglected their duty, does this excuse the plaintiff from the exercise of that ordinary care every prudent man bestows upon his own ? We think not. All the testimony in the cause shows, if the few rods of fence the defendants were required to make, would not, when made, have constituted an inclosure; for the other sides were open and uninclosed, and there is no evidence to show that the animals got upon the railroad by the line the defendants were to fence; and the inference is as fair that they did not so get upon it, as that they did.
It cannot be denied, that the plaintiff kept his sheep, whose habits he should know, very negligently, far more so than an ordinarily prudent man takes of such property. They were subject to destruction every hour in the day, by trains running at their usual speed; and although the defendants might be bound to make the fence, it did not exempt the plaintiff from the obligation to take ordinary care for the protection of the animals. His negligence was the direct and proximate cause of the injury, and the defendants should have the benefit of that principle.
For the reasons given, the judgment is reversed, and the cause remanded.