Trespass, for breaking and entering the plaintiff’s close, and taking and carrying away ten tons of bay, &c. Plea, the general issue, accompanied with a brief statement of license from the plaintiff. It appeared in evidence that the defendants, by permission of the plaintiff, ■occupied a barn of the plaintiff’s, situate upon the premises described in the writ, from December, 1870, to July, 1871, during which time the defendants kept in said barn several horses.
Cited by 1 later decisions — most recently August 1877
1 state decisions
Good law ✅— No negative treatment on recordhow we know
¶1Trespass — Evidence.
The plaintiff charged that the defendants' horses had eaten hay from one or more of seven mows in the plaintiff's barn, not including the two which had been sold, namely, one to the defendants and another to Meserve. The defendants denied this, and, in support and proof of their denial, undertook to show that whatever hay was taken from the plaintiff's other mows was taken by others, and not by themselves or their horses. They were therefore permitted to show that the plaintiff gave permission to Meserve to take hay from "off the next mow or mows," that is, from either of the other seven mows.
¶2The evidence was clearly competent, as tending to account for the missing hay in a manner consistent with the defendants' assertion of their innocence.
¶3The evidence objected to was offered for the further purpose of showing "the quality of the hay purchased by them." This was not a *450
question in issue. It was quality of the hay not purchased by them which was material upon the question of the amount of damage sustained by the plaintiff from the alleged trespass; but the jury, having found that neither the defendants nor their horses took the plaintiff's hay, the admission of the testimony, which was competent on other grounds, cannot in any way have prejudiced the the plaintiff.
