We think the testimony offered by the defendant as to what passed between the plaintiff and Shattuck as to the division fence between them, was properly rejected. It was decided in this case at the last term of the supreme court in this county, that it was the duty of the defendant to restrain his ram from running at large, irrespective of any obligation on the plaintiff’s part to keep up a legal fence between him and Shattuck, in whose enclosure the defendant was having his ram kept, and it was then held that the defendant had incurred the penalty, if his ram was found off his enclosure and with the sheep of the plaintiff, unless it was made to appear that the ram was so off the defendant’s premises by reason of some positive wrongful act of the plaintiff himself, or could not have been prevented by the utmost care and diligence of the defendant, or Shattuck the keeper.
The only respect in which the testimony offered differs materially, from what was in the case when it was before us last year, is that the plaintiff told Shattuck, that he would see that his part of the fence *56was properly up, and that he would risk the rani’s getting out, so far as his part of the fence was concerned.
This did not constitute any agreement on the part of the plaintiff that placed him under any additional obligation. He was bound by law to keep up a legal fence. What he said to Shattuck, if itjhad been based on any legal consideration, would not have increased his duty to keep up his fence. His saying that he would risk the ram’s getting out, was but another way of saying he would keep up his fence. The fact that Shattuck relied on his keeping the fence up, does not change the case. Shattuck had no right to rely on any such agreement, or obligation, whether imposed by law or by his promise. The law required him to restrain the animal at all events, as already decided ; and he seems to have so regarded it, for he’went' through and examined the plaintiff’s fence and found it all right. It does not appear from the case that Shattuck did any act, or neglected to do any act, relying on what the plaintiff said, that he would not have done, or neglected, if the plaintiff had not said anything on the subject, so that the doctrine of estoppel has no application to the case.
It is insisted that the settlement with Pitkin operated to discharge the defendant, and that" but one penalty was incurred for the escape of all the sheep. It may be true that so far as Shattuck, the keeper, is concerned, but one penalty was incurred ; he was only the keeper of them all; they were kept together and so far as appears escaped together, but it is not necessary now to determine this question.
The statute imposes the penalty upon the owner of any ram, or rams, that shall bo found out of the enclosure of such owner or the keeper, and with the sheep of another, between certain periods. In this case the defendant’s ram was found out of the enclosure of the owner, and keeper, and with the sheep of the plaintiff; this subjects the owner to the penalty, and it clearly can make no difference with the defendant’s liability, that his ram escaped and was found with the rams of another. In such case the owner of each is liable to a penalty for the escape of his own ram, and the payment by one of the penalty that he is subject to, for the escape of his ram, is no discharge of the liability of the other.
It is further insisted that the county court erred in admitting the testimony of the wife of the plaintiff, as to what transpired between *57her and the defendant, at the time when the defendant took the ram from the plaintiff’s barn. .
The statute provides that the wife may be a witness for or against her husband “ in all matters of business transactions, where the transaction was had and conducted by the wife as the agent of her husband.”
It appears that when the plaintiff left his home to be absent a few days, he expressly directed his wife not to let the defendant take his ram away, unless he brought a writing from the plaintiff that he had settled for it. During the absence of the plaintiff the defendant went to the plaintiff’s house to get the ram; the wife told the defendant what directions she had from her husband, and forbid his taking the animal away, but the defendant broke into the stable and took him. It was in relation to this transaction only that the wife testified.
She was clearly the agent of the plaintiff in this matter, and testified simply as to what took place in connection with the discharge of her duties, under such express directions of her husband, and for this purpose we think she was a competent witness.
Judgment affirmed.