63 Miss. 43 | Miss. | 1885
delivered the opinion of the court.
The second instruction given for the appellee was erroneous and should not have been given. Section 984 of the code provides, among other things, a remedy for stock running at large in a common inclosure. As far as it relates to this subject, this section was intended to prevent depredations of stock from within the common inclosure. The common inclosure is not required to be a lawful fence. No matter how defective or ineffectual it may be as against stock from without, stock are prohibited from running at large in a common inclosure, within which more than one person is cultivating land, without the consent of all such persons.
The bill of exceptions offered in evidence by the appellant was properly excluded from the jury. It was not competent to show by it what any witness had testified on the former trial. Green v. Irving, 54 Miss. 450.
Under § 1507 of the code, the fact that the claim sued on had been assigned to others since the suit was brought thereon, was no obstacle to the suit being prosecuted in the name of the appellant. But it does not appear from the record that appellant ever had any interest in the claim or in the land upon which the depredations are alleged to have been committed. It might be inferred from the record that her husband may have had 'an interest in the subject-matter of the suit, but not that she ever had any. In this condition of the record appellant was not injured by the error committed in the instructions given for appellee, and the judgment is affirmed.
Affirmed.
