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By the Court,

Willard, P. J.

The main fact, that the plaintiff’s horse was injured in the right shoulder, so as to destroy its usefulness, was proved beyond a doubt. The plaintiff’s horses were shown to have been so fastened together, that one could not have kicked the other on its opposite side. The defendant’s horses were wrongfully in the plaintiff’s lot, and near the plaintiff’s horses. There was evidence from which the justice might well infer that the horses fought, and that this injury was inflicted by one of the defendant’s horses. The probabilities were all on that side of the question. A strange horse would be more likely to kick and fight than the companion to which the horse was fastened. Moreover, the latter could not have kicked the other in the place where he was injured. There were no other horses shown to be in the field but the defendant’s, and they were wrongfully there. There was no defect in the proof; and in my judgment the justice drew the correct conclusions from the facts. Perhaps the court could not have reversed the judgment had the justice found the other way. When there is no material defect in the proof, the court ought not to disturb the judgment of the court below for a difference of opinion in the weight of the evidence. (See 21 Wend. 305; 18 Id. 141; 2 Sandf. S. C. Rep. 222; 5 Barb. S. C. Rep. 263; 6 Id. 141.)

It was not necessary in this case to alledge and prove that the defendant’s horse was accustomed to fight and kick, or to prove a scienter. The declaration was for breaking and entering the plaintiff’s close, and the injury to the plaintiff’s horse was alledged in aggravation of the trespass. This was sufficient. (Van Leuven v. Lyke, 1 Comst. 515.)

Bor was there any error in permitting a witness to be recalled, after the counsel had commenced summing up the cause. Whether a witness shall be recalled or not, is a matter resting in the sound discretion of the court. (Law v. Merrills, 6 Wend. 276, per Walworth, Ch. The People v. Mather, *3904 Wend. 246. Cowen & Hill’s Notes, 711, 788.) In this case he was recalled to say how he had testified on a given point, and not for the purpose of opening his examination at large. It is plain from the return of the justice, that the witness testified on his primary examination, in the same way as he did when recalled, and not different. No injustice was therefore done to any body by recalling him.

[Essex General Term.July 7, 1851.

Willard, Hand and Cady, Justices.]

On the whole, we think the judgment of the justice was right. The judgment of the county court in affirming it was right, and should be affirmed.

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