Opinion hy
Hall, J.This action was originally commenced by Campbell and brother, against Jacob M. Lawson before a justice of the peace, to recover the value of an Elk, said tobe reclaimed by plaintiffs, which the defendant bad killed. The defendant set up in defense that the Elk ■was trespassing upon his enclosure when killed, and that the plaintiffs had a drove of Elk, which had invaded his fields and trespassed npen his grain-fields and did great damage to the defendant and sets up this damage by way of set-off to plaintiff’s demand.
The court below instructed the jury, in substance, “ That if the enclosures of the defendant were not protected by a good and sufficient fence, such as would protect bis crops from stock not breachy : that be could not be allowed his damages.”
The Code, § 913 ; provides, that “ if the beasts, were lawfully on the adjoining land, and escaped therefrom in *414consequence of the neglect of the person, suffering the damage, to maintain his part of (he division fence, the owner of the beasts, shall not be liable for such damage.”
Without extending this opinion or examining the question, as to lawful fences and trespassing animals generally; we can well conceive of a case where the instructions of the conrt would find completé shelter from error, under the law above referred to, and in as much as the evidence upon which the instructions were given, is not set out, we cannot say but such a case was presented by the evidence. This court cannot presume any set of facts, to base error upon. Every fair presumption, should be in favor of the decision below. Dunham v. Benedict, 1 G. Greene, 74; Mackemer v. Binner, ib., 157; Saum, v. Jones County, ib., 155.
There is another point insisted upon by the plaintiffs in error. After the defendant below, had given evidence as to the value of the Elk, the plaintiffs was permitted to give further evidence by way of rebutter, and fixing the va'.ui of the elk.
This court has repeatedly decided that the admission of such evidence was proper, and in the case of Wright v. Millard, the judgment of the court below was reversed, on the ground that the court refused to admit evidence in rebutter, which went to establish the main fact of the cauce of action.
The action was trespass, (piare clausum fregit, and the question in issue was the possession of tho'plaintiffs. In giving evidence in chief, the plaintiff substantially proved his possession. The defendant then introduced several witnesses, who proved defendant in possession, and not plaintiff. In reply, plaintiff offered further evidence of his possession-, which tlie district court refused to admit, and exceptions wore taken. This court reversed the jndg. menfs, ruling that such restricting evidence was proper. That the plaintiff, when he has made out Iris case by competent evidence, might properly rest, and that he was not *415bound to give more, evidence than would prove his .case in the first instance.
G. G. Wright and J. E. Jewett, for appellant. Bates and Finch for appellee.Judgment affirmed.