
    McManus v. Finan.
    Section ltíS of the Code, was designed to prevent the unjust determination of a cause, on account of an accidental or inadvertent omission of a party to call a witness, or to ask a question on some given point; and was not intended to be limited in its application, to the period of examining witnesses.
    The privilege of calling a witness, after the evidence is closed, to prove á fact which has been omitted by inadvertence, is within the discretion and control of the court, as are also the terms to be imposed, if any are deemed just.
    Where in an action of trespass, charging the cattle of the defendant with breaking into the plaintiff’s close and destroying his crops, the court, after defining a lawful fence, instructed the jury, that whether the fence was a lawful fence, and a good one, was in the discretion of'-the jury; Held, That the word discretion, in its proper sense, implies judgment; and that used in this sense, the instruction was correct.
    Where in such an action, the court instructed the jury, that “no man has the right to suffer to run at large, animals of a dangerous kind either to the person or property of another, and if he does, he is responsible for all damages which result from the acts of such animals;” Held, That there could be no possible objection to the instruction.
    Where in such an action, the defendant asked the court to charge the jury as 'follows: “That if the jury believe from the testimony, that the domestic animals of other persons beside those of defendant, were in the habit of trespassing on the premises, at the times set forth in the petition, they cannot find that the defendant’s domestic animals did all the damage to the premises,” which instruction the court refused to give; Held, That the instruction involved a question of fact, and was properly refused.
    Where in such an action, the defendant asked the court to instruct the jury as follows: “ That the jury must be satisfied from the testimony, what amount of damages the defendant’s animals have done, before they can find for the plaintiff,” which instruction was refused; Held, That the instruction was properly refused.
    Where in an action of trespass, charging the cattle of defendant with breaking into the close of plaintiff, and destroying his crops, the defendant filed a motion for-a new trial, for the reason, among others, that he had discovered new evidence, which motion was supported by the affidavit of the defendant, in which he stated, that he had been informed, and believed, that he could prove by A. M., that A. M. owned a cow that was exceedingly bad about breaking down fences; that said cow was running at large in the prairie at the time the trespass complained of was committed; and that A. M. afterwards sold said cow, because of her frequent trespasses in breaking into various persons’ inclosures; that he (defendant) has been informed, and believes he can prove, by one P. M., that he was growing a crop in the same inclosure, when the trespasses complained of were committed; and that while at work in the early part of the season, when the cattle first began to get into said inelosure, the fence was first thrown down, and the cattle first led in by the said cow; that he is informed he can prove this last fact, by one , J. W.; that the said witnesses reside at a distance from court, and he has not had time, nor been able, to procure their affidavits to file with the motion; that he was entirely taken by surprise by the evidence of the plaintiff, that the fence was thrown down by his cattle, and should have been prepared to show that his cattle were not unruly, and accustomed to break over ordinary lawful fences; and that he expected to be able to prove all the above matters on another trial — which motion for a new trial was overruled by the court; Held, That the motion was properly overruled.
    
      Appeal from the Madison District Court.
    
    This was an action brought to recover damages for tbe defendant’s cattle breaking into the plaintiff’s close, and destroying his crops. On the trial, after the plaintiff bad closed bis evidence, and bad concluded bis opening argument, and tbe defendant also bad addressed tbe jury, tbe plaintiff moved for leave to introduce a witness, to prove tbat tbe land where tbe damage was done was that described in the petition, wbiob be claimed bad been omitted through an oversight. Tbe defendant objected, but tbe court allowed it. Tbe defendant then introduced a witness to rebut tbe testimony so. offered, and was allowed to, and did make further argument to the jury with regard to tbat portion of tbe case upon which such new evidence bad been offered. On the submission of the cause, tbe court instructed tbe jury, in substance, as follows: Tbat they should inquire whether tbe land was substantially described, and whether tbe plaintiff bad’possession; and tbat “ tbe plaintiff claims tbat bis crop was destroyed by defendant’s cattle. It is important tbat you determine whether tbe crop was destroyed by defendant’s cattle; whether plaintiff’s fence was a lawful fence, four and a balf feet bigb, with spaces sufficiently close; was tbe fence four and a balf feet high, and such as is generally, in this country, recognized as a good fence ? This is a matter entirely in your discretion. You will then inquire whether defendant’s cattle broke into plaintiff’s field and destroyed his crop; and if you find that the fence was such an one as comes within the meaning of the law, and such an one as is recognized as a good common fence in the country, and the defendant’s cattle broke through the inclosure, the defendant is liable for all-the damages resulting from such breach. In such case, it was the duty of the defendant to keep his cattle up, and not suffer them to run at large to the danger of his neighbor’s property; and if property was destroyed, he is responsible. No man has the right to suffer to run at large, animals of a dangerous kind, either to tbe person or property of another; and if be does, be is responsible for all damages which result from tbe acts of sucb animals. But if tbe fence was not a reasonable one, sucb as would be calculated to protect tbe property, tbe crop, and tbe loss was tbe consequence of. tbe negligence of plaintiff, and that with ordinary care and prudence, be could have protected tbe crops, it was bis duty to do so; and if be failed to do so, and tbe fence was sucb as tbe custom of tbe country and tbe law would not recognize as a lawful fence, he would not be entitled to recover; tbe loss would be a consequence of bis own negligence and fault.”
    To these instructions, so far as they relate to tbe fence and tbe unruliness of tbe cattle, the defendant excepted. Tbe defendant further requested tbe court to instruct tbe jury: 1. “ That if they believe, from tbe testimony, that tbe domestic animals of other persons, besides those of tbe defendant, were in tbe habit of trespassing on tbe premises, and at tbe times set forth in tbe petition, they could not find that tbe defendant’s animals did all tbe damage to tbe premises.” 2. “ That tbe jury must be satisfied, from tbe testimony, what amount of damage tbe defendant’s animals have done, before they can find for tbe plaintiff.” These instructions were refused, and tbe defendant excepted. He then moved for a new trial upon tbe ground, (beside others,) of newly discovered evidence, and filed an affidavit, stating that since tbe trial be has been informed, and be believes .that be can prove, by one Allen Major, that be owned a cow which was exceedingly bad about knocking and breaking down fences, and that the said cow was running at large in the prairie at the time the trespasses complained of were commenced; and that said Major afterwards sold said cow, because of her frequent trespasses in breaking in various persons’ inclosures. And, farther, that he has been informed, and believes he can prove, by one Patrick McDuffie, that he was growing a crop in the same inclosure, when the trespasses complained of i^ere committed, and that while at work, in the early part of the season, when the cattle first began to get into said inclosure, the fence was first thrown down by the said cow, and the cattle were first led in by the said cow; and that he is informed that he can prove this last fact by one John Welch; and that the said witnesses reside at a distance from the court, and he has not had time, nor been able to procure their affidavits to file with this motion. He further states, that he was taken entirely by surprise by the evidence of the plaintiff, that the fence was thrown down by [his] cattle, and should have-been prepared to show that his cattle were not unruly, and were not accustomed to break over ordinary lawful fences;. and that he expected to be able to prove all the above matters on another trial. This motion was overruled. Judgment having been rendered against him, the defendant appeals, and the following are assigned as error:
    1. In permitting the plaintiff to introduce a witness after the defendant had closed his argument.
    2. In refusing the first instruction asked by the defendant,
    8. In refusing the second instruction asked by the defendant.
    4. In instructing the jury that whether the plaintiff’s fence was a lawful one, and such as is recognized in this country as a good fence, was entirely in their discretion.
    5. In instructing the jury that no man has a right to suffer to run at large, animals of a’ dangerous kind, either to the person or the property of another.
    6. In overruling the motion for a new trial.
    
      
      M. L. McPherson, for tire appellant.
    
      Curtis Bates, for the appellee.
   Woodward, J.

The first error assigned relates to the admission of the witness, after the defendant had closed his argument. Section 1778 of the Code was designed to prevent the unjust determination of a cause; on account of an ■ accidental or inadvertent omission of a party to call a witness, or to ask a question, to some point. It was not intended to be limited in its application to the period of examining witnesses. Eor this, a statutory provision would not have been' thought requisite. The law deems it just that the evidence should be heard, and does not favor that which is denominated “ sharp practice.” But the privilege is not to be abused. It is within the discretion and control of the court, as are also the terms to be imposed, if any are deemed just. There is nothing to show that the discretion of the court was improperly exercised in the present instance.

The defendant was allowed to introduce testimony in rebuttal, and to present further considerations to the jury on the new evidence offered.

The assignment of error numbered four, relates to the instruction, that the question whether the fence was a lawful fence, and a good one, was in the discretion of the jury. The court repeatedly refers to the statute definition of a. sufficient fence. Acts of 1852-3, 174, chap. 105. And as that prescribes the height, in feet and inches, we will not. suppose the word discretion refers, in any sense, to that. It is true, that the more ordinary use of this word, with us, implies something more of mere choice than would be consistent with the present application of it. But in its more proper sense, it implies judgment — soundness of judgment. Thus, we speak of a discreet man, and of his discretion; and in this sense, the word applies well enough to those qualities of a fence which are in their nature undefined, as when the statute describes it as “of strong materials, put up in a good and substantial manner, with sufficiently small spaces,” &c. These things were within their discretion or sound judgment, not in their mere option. The court quite clearly directs the jury that the fence must be one answering to the sense of the law; and if the instruction might be construed as requiring anything more than this — such as that it should be such a fence as the custom of the country called for — this was matter for the plaintiff to complain of, and not the defendant.

To the instruction embraced in the fifth assignment of error, there can be no possible objection.

Of the remaining matters, some present that difficulty of adjudication which arises from vagueness and want of point in the objections. Thus, the second error assigned is, on refusing the- first instruction asked by the defendant. The court had before instructed the jury that it was important for them to inquire whether the defendant’s cattle did the damage complained of; and besides, this is the very gist of the action, and of which the jury is to inquire. Therefore, the court may, perhaps well enough, have declined to give it, because it "was already involved and given. But if the defendant insists upon the instruction, notwithstanding what was already before the jury, then we are obliged to say that it is not true — it is not accurate. Suppose the jury do find that the defendant’s cattle did do all the damage, in fact, although other persons’ cattle trespassed there, may they not find such a fact? It is possible that other cattle may have entered the close, and not have destroyed the crops. The instruction asked is not one which will warrant a reversal.

As to the third error assigned — the refusal of the second instruction asked by the defendant — the mind is led to doubt whether it understands this instruction. Of course, the jury must find that the defendant’s cattle committed the trespass; before they can find for the plaintiff; and upon this alone they would find, at least, nominal damages. It is not perceived to what this aims, since the jury have -found damages to the amount of one hundred and fifty dollars, done by the defendant’s cattle, and not by those of other persons. They might find against the defendant, and then disagree as to the amount; or they might find nominal damages. But it is not correct that they must find the amount, before they can find for the plaintiff. It is true that they could not return a verdict into court without finding the amount; or, at least, if they return a verdict for the plaintiff as for a trespass, and could not agree on the damages, such a verdict would carry nominal damages. "We conceive that the instruction asked is not correct, if we can imagine any proper meaning for it.

. The motion for a new trial is based upon an affidavit of what the defendant is informed and believes he can prove by certain persons. This does not yield sufficient certainty of his being able to prove the facts, if he had the witnesses. ■But further, if the facts were proved, they would not necessarily change the verdict. And yet more, perhaps they would not even authorize a change. But further, the affidavit rather shows a neglect, a want of preparation of his cause, on the part of the defendant. He says he was surprised by the evidence of the plaintiff, whilst that evidence was on the very gist of the cause, as it was to be proved by the plaintiff.

There does not appear to be any error in the rulings of the court below, and the judgment is affirmed.  