The opinion of the court was delivered by
Barrett, J.This is trespass guare clausum for breaking and entering of the defendant’s cattle into the plaintiff’s close.
The evidence of the plaintiff showed the fact as alleged. There was no evidence to the contrary.
This would authorize the court to tell the jury that, if they believed the evidence, the plaintiff was entitled to recover. It was not necessary that the plaintiff' should give any evidence as to quality of his fence, or that it was what is called legal fence. ' Though evidence was given on that subject, yet none of it tended to show that his fence was not legal, or that the cattle got into the plaintiff’s close through any defect of the plaintiff’s fence. Consequently there was no ground of defence on this account.
In the argument, the point relied on is the part of the charge as to presumptions of the legal sufficiency of the plaintiff’s fence. -If it had been incumbent on the plaintiff' to show that his fence was legal, in order to make out his right of recovery, we should think, upon the state of the evidence in this case, that that part of the charge would be erroneous.
But, as it was not thus incumbent on the plaintiff, inasmuch as the defendant did not undertake to defend on the ground of defect in the plaintiff’s fence, that instruction to the jury had no office to serve, and could not work any detriment to the defendant. The plaintiff’s right did not need such presumption, as the case stood on the evidence.
The judgment is affirmed,