Madison County IL Archives Court.....Cool, Nathaniel Buckmaster V John 1850 ************************************************ Copyright. All rights reserved. http://www.usgwarch.org/copyright.htm http://www.usgwarch.org/il/ilfiles.htm ************************************************ File contributed for use in USGenWeb Archives by: Deb Haines http://www.genrecords.net/emailregistry/vols/00003.html#0000719 May 19, 2008, 6:26 am Source: Reports Of Cases Written: 1850 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.(a) The Supreme Court will not inquire into the correctness of instructions, when the record does not furnish evidence that they were excepted to.(b) If there is an outer and an inner fence to a field, a party not having an exclusive right in the field, cannot remove the inner fence, although he is the owner thereof, without subjecting himself to the consequences of exposing the crops to danger. Nor is it any defense 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.(c) This was an action of trespass quare clausum fregit, commenced in the Madison Circuit Court, by appellee against appellant, and charges that the trespass complained of was committed on the first day of September, with a continuendo to the first 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. 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, 1 B. Monroe, 56; McManus v. Cricket, 1 East 100; 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 an action 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 Ill., 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. 3. A party can only take advantage of a non-rejoinder of plaintiff by a plea in abatement: 2 Stark. Ev., 1103. 4. A party to avail himself of an exception to the decision of the Circuit Court, must take an exception at the time the decision is made, and the bill of exceptions must affirmatively show that the exception was taken at that time: 11 Ill., 72 580, 586. 5. The bill of exceptions in this case sets forth that it is only an outline of the testimony produced on 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 cannot inquire into the propriety of the decision of the Circuit Court refusing to grant a 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 upon 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 on the trial. Nor can we inquire into the correctness of the instructions complained of. The record furnishes no evidence that the defendant excepted to the giving of the instructions. It remains to be considered whether the court erred in excluding certain testimony offered by the defendant. The case showed that several persons raised crops in a common field surrounded by a defective fence. During the season, one of them erected an inside fence sufficient to protect the crops. In September, 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 of which stock entered into the field and destroyed the corn. The action was brought to recover the value of the corn thus destroyed. The defendant offered to prove that the plaintiff was bound to keep the outside fence in repair. We cannot perceive how the admission of this testimony could have benefited the defendant. The fact that it was the duty of the plaintiff to keep the outer fence in proper condition did not justify the defendant in removing the inner one. For aught appearing in the case, the plaintiff had an undoubted right to rely on the inside fence for the protection of his property. The defendant proposed to prove, in mitigation 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. Ho could not avoid that responsibility by showing that 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 was standing in the field when purchased by the plaintiff, but was cut and put in shock by him 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 a right to go upon the 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 was the removal of the fence, not the entry on the close. The judgment of the Circuit Court is affirmed, with costs. Judgment affirmed. ----------------------- (a) A bill of exceptions should purport to contain all the evidence: The P. P. & J. R. R. Co. v. McIntire, 39 Ill., 298 (annotated edition), and note. (b) See Leigh v. Hodges, 3 Scam., 15, and note: Gibbons v. Johnson, Id., 61, and note. (c) See Headen v. Rust, 39 Ill., 186 (annotated edition), cases cited and notes; Stoner v. Shugart, 45 Ill., 76 (annotated edition), and notes. Additional Comments: Reports of Cases Determined in the Supreme Court of the State of Illinois from November Term, 1850, to June Term, 1851, both inclusive by E. Peck, Counsellor at Law. Volume XII. Reprinted from the Original Edition, with Annotations by William Gordon McMillan of the Chicago Bar. Callaghan & Company, Chicago, Ill. 1881. File at: http://files.usgwarchives.net/il/madison/court/cool21gwl.txt This file has been created by a form at http://www.genrecords.org/ilfiles/ File size: 8.5 Kb