Erom the facts stated in the bill of exceptions, the fence of the plaintiff in error, Woodward, was not a “lawful fence,” agreeably to the statute, (Clay’s Dig. 241,) at the time the defendant’s hogs broke into his enclosure. The defendant’s right of action, for the inj ury done to his hogs by the plaintiff’s dogs, depended indeed upon this point. Under such a state of facts, no action would lie of course in favor of Woodward for the injury done to his crop by plaintiff’s hogs; and if no action would lie, it was clearly not a case for recoupment, and the Circuit Court did not err in rejecting the testimony offered by Woodward to show damage of that kind.
The next assignment is, that the court erred in refusing to. allow .a witness of the defendant, who was about the court, to be “called and brought into court;” for it is stated that the request or motion was in that form; and this, although it appears that the witness had not been subpoenaed. Nothing is *382clearer than that a court in its discretion may refuse such an application.
There is no error in the rulings of the court, and the judgment is affirmed.