Nathaniel Buckmaster, Appellant, v. John Cool, Appellee.

APPEAL FROM MADISON.'

A bill of exceptions,'which professes to give only “an outline of all the testimony in the case,”' is not sufficient to authorize' the Supreme Court to inquire into the propriety of the refusal by the Circuit Court to grant a new trial.

The Supreme Court will not inquire into the correctness of instructions, when the record does not furnish evidence that they were excepted to.

If there is an outer and an inner fence to a field, a party not .haying án .exclusive right in the field, caunot'remove the inner fence, although'lie is the owner thereof, without subjecting himself to the consequences of exposing the crops to danger. Nor is it any defence to an action of trespass growing out of the removal of the inner fence, to show,'that the complaining party was bound to keep the outer fence in repair, or that he might have repaired'the same at small expense.

This was an action of trespass quare clausum fr eg it, commenced *77in. the Madison Circuit Court, by appellee against appellant, and charges that the trespass complained of was committed on the 1st day of September, with a continuendo to the 1st day of February, 1850.

The appellant pleaded the general issue and two special pleas. Issue was taken upon the pleas, but as the decision of the Court does not turn upon the pleadings, it is unnecessary to recite them. The cause was tried by Underwood, Judge, and a jury, at March term, 1850, and a verdict was found and judgment entered, in favor of appellee against the appellant, for $345 00.

A bill of exceptions was taken by the appellant, who brings the cause to this Court, and he assigns for error the refusal of the Court below to admit certain evidence offered by him, the giving of improper instructions, and the refusal to grant a new trial.

W. Martin and E. Keating, for appellant.

The master is not liable for the willful disobedience of his servant. Ferguson v. Terry, 1B. Monroe, 56; McManus v. Cricket, 1 East, 106; Lyons v. Martin, 8 Adol and E., 512.

In assessing damages in an action of trespass quare clausum fregit, only the direct damages of the trespass can be allowed. Loker v. Damon, 17 Pick., 284; 2 Greenleaf on Ev., p. 258; Sedgwick on Dam., 98; Miller v. Mariner’s Church, 7 Greenleaf, 51; Thompson v. Shattuck, 2 Metcalf, 615.

J. Gillespie with Billings & Parsons, for appellee.

1. In actions of trespass, where the testimony is often and perhaps usually circumstantial, the Court will rarely, if ever, disturb a verdict, where there is anything in the record tending to support the finding of the jury. Young v. Silkwood, 11 Ills., 36.

2. If the plaintiff have possession of that part of the close upon which the trespass was committed, although trespass was committed upon other parts not in the possession of plaintiff, he can maintain his action. 6 East, 39; 2 Stark. Ev. 1098.

8. A party can only take advantage of a non-joinder of plaintiff, by a plea in abatement. 2 Stark. Ev., 1103.

4. A party to avail himself of an exception to the decision of *78the Circuit' Court;-must take--an' -exception at the time the decision is made, and the bill ofexceptions'-must affirmatively show that the exception was taken akthat time. - ’ll Ills.,' 72, 580, 586.

5. The bill of exceptions in this case, sets forth that'it is only an outline--QÍ the testimony produced • oh''the' trial below. This Court will'not "examine' into "the evidence unless'it appears to have been all-the'"evidence produced on the trial.

Treat, C. J.

We c~ainot iftqthrè~ into~ the propriety of the

decision of the Circuit Court refusing to grant á new trial. It does not affirmatively appear, as-it should" in order to present that- question, - that" all' of the material evidence is in the record. It - is stated in the conclusion of the bill of exceptions, that it contains' “'an outline of all the testimony in-the case.” ' This language does not imply, that all of the facts proved on the trial, and which may legitimately have been considered by the jury, are previously set-forth. It "is'not equivalent'to'the usual statement in a bill of exceptions, that it contains the substance of the -testimony-given bn the trial.

Nor can we: inquire into 'the- correctness of the instructions complained of. The- record- furnishes no "evidence,' that' the defendant exceptéd to the giving of the "instructions.

It remains to be considered, whether the-Court erred in excluding certain testimony offered ’ by the defendant. The ease showed,- that several persons raised crops in a common field surrounded by a defective fence. ' During the' season, brie of them erected an inside fence sufficient to protect the crops. In Se|> tember, the plaintiff purchased'eighteen acres of corn growing in the field; and, in November, the servants of the defendant removed a'portion of the inner fence, by means'bf which stock entered-into the field and destroyed the'corn. The action "was brought to:r'ecovér the valúe of the'corn thus'destroyed. The defendant offered-to prove, that the -plaintiff was bound to'keep the outside fehce in repair. We cannot perceive, how the admission of this testimony could have "beiiefitted"the defendant. The fact that-it was the duty of the plaintiff to keep the outer fencé in proper condition, did not justify the defendant in removing the inner bnO. Fo-r aught -appearing in the case, the plaintiff had an undoubted right to rely on the 'inside fence for the protection bf -his property-. The defendant proposed to prove, "in *79mitigation of damages, that the- plaintiff might, after the- taking away of the inner fence, .at a.small expense and by the-exercise of ordinary care, have saved his corn.. This evidence was. properly excluded. If the. fence;was. removed -by the- direction- of the defendant, he was responsible for all of the- consequences directly resulting from the act. . He .could not avoid-that-responsibility, by showing thab.the plaintiff failed to repair the breach that his servants .had committed... It was not a trifling- trespass* * as in the .case of the.opening.of a gate* which .the owner sees, open before any injury ensues, .and neglects ..-to close. The defendant also offered .to. prove,, the price-which the plaintiff-paid for the corn, at public, auction, two months, prior to its destruction. This testimony may not have been wholly irrelevant, but, we think, it had too remote a connection with, the real question in issue, to justify the reversal of the judgment, because of its exclusion. The corn w9s.stan.ding. in the field-when purchased by the plaintiff, but was cut and put in shock by Mm before it was destroyed. The- price .that, he paid for it, was .not, therefore, any just or certain criterion, of the value at the time:of its destruction. The defendant further, .proposed-to-;prove* that he had the. right to go upon Jbe field. Such, right, if it existed,■did not authorize him to remove the fence, or relieve him.from liability for the consequences. The gist of. the .action.;ivas -the ¡ removal of the fence, .not the entry on the close.

The judgment of .the Circuit, Court, js.affirmed, with costs.

Judgment qffvrrned. ■