48 Iowa 256 | Iowa | 1878
II. On the trial of the cause the defendant offered evidence tending to show that the cattle distrained were lawfully upon the adjoining inclosure, and that they escaped from such inclosure of plaintiff through a fence which was not a lawful fence. The plaintiff objected to this testimony for the following reasons: “1. That the only question for the jury to determine in the appeal from the assessment of damages by the township trustees is the amount of damages sustained. 2. Because it was conceded, and not contradicted in the testimony, that the cattle had trespassed on plaintiff’s lands, and done damage thereon, between sunset and sunrise, and because plaintiff was not bound to maintain a partition fence against stock trespassing in the nighttime, under chapter 70 of the Acts of the Fifteenth General Assembly, and chapter 3 of title 11 of the Code of 1873.” The court overruled these objections, and admitted the testimony. The bill of exceptions recites that there was no evidence that the cattle had broken into plaintiff’s inclosure through an outside fence.
IY. Appellant assigns as error the refusal of the court to give certain instructions asked as to the rights and duties of the parties if they had agreed not to repair and keep up the division fence between them. We have none of the evidence in the abstract, nor does it, in any manner, appear that • any evidence was introduced tending to prove such an agreement.
The record discloses no error.
Affirmed.