
    Heath v. Coltenback.
    In trespass for an injury done by cattle or stock, the plaintiff, in order to recover damages, must show that his fence was sufficient to turn ordinary stock.
    
      Wagner v. Hissell, 3 Iowa, 396, cited and followed.
    On the trial of an appeal from a justice of the peace, in the district court, if it appears from the transcript, that before the justice, the parties had a full trial, the demand of the plaintiff is not to be taken as admitted by the district court.
    
      Appeal from, the Delaware District Oowt.
    
    Monday, January 26, 1858.
    This was an action of trespass, commenced before a justice of the peace, for injuries to plaintiff’s crops, by the stock of defendant. On the trial in the district court, the court instructed the jury, that “ cattle and hogs are free commoners, and before the plaintiff could recover, he must show that his fence was such as would turn ordinary cattle.” The defendant recovered his costs, and plaintiff appeals.
    
      A. S. Souse, for the appellant.
    
      W. T. Barter, for the appellee.
   "Wright, C. J.

The appellant insists that the court erred in the instruction given to the jury, as to the duty of plaintiff to fence his crops, and protect them against the alleged trespass of defendant’s stock. The instructions were in accordance with the rule as recognized by this court, in Bissell v. Wagner, 3 Iowa, 396.

It is also claimed that as the transcript of the justice does not show that defendant denied plaintiff’s claim, the court below erred in rendering judgment in favor of defendant. It does appeal’, however, that the parties before the justice, had a full investigation and trial of the case. Under such circumstances, we have held, in several cases, that the demand of plaintiff is not to be treated as admitted on the trial in the district court. Brock v. Manatt, ante, 270, and Milburn v. Sinnamon, 4 G. Greene, 309.

Judgment affirmed.  