By the Court,
Kingman, C. J.
The plaintiff' in error was sued for damages done by his stock to the growing crops of the defendant in error. A trial was had which resulted in a verdict and judgment against the plaintiff* in error. He brings the case to this court, alleging various errors for which he claims that the judgment should be reversed. These alleged errors will be examined in the order in which they are presented.
Pl.BATOTNOS : PBtition, prayer of. First. There were two grounds of action sep- ' arate]y stated ill tile petítlOll. Ill tllO filSt there was no prayer for judgment. The petition closed with a prayer for judgment for one hundred dollars, a [441]*441sum larger than the verdict or judgment. The testimony applied to both counts in the petition. There was no error in this. The prayer for relief went alike to both counts. Marquett v. Marquett, 12 N. Y., 341.
Description ot? the close. Second. The petition describes the land upon x > a which the alleged trespasses were committed as the land of the plaintiff, in, Johnson county. This' description is sufficient. It was enough at common law. [1 Chit. Pl., 503.] The reference made by counsel to Chitty are to the “new rules,” not in force in this state. None of the authorities cited sustain the plaintiff in error on this point, save where legislation to that effect has preceded the decision. We know of no legislation of the kind in this state.
Plaintiff's Interest in the land: Parties. Third. In the progress of the trial it appeared that the plaintiff was occupying the ground on which the alleged'trespasses were committed as lessee, and that the owner, William Mitchell, was to have a portion of the crop for rent; whereupon the defendant moved the court to make Mitchell a party, which was denied. Defendant then moved the court to dismiss the action because the plaintiff was not the real party in interest, which was likewise overruled.
The decision on the first motion was right. The lessee in possession had a right to his action. He could only recover for the damage done him; but he was not compelled to wait the action of his landlord, nor was it necessary to make the landlord a party to determine the questions at issue.
Even had there been a defect of parties, it could not be reached in this way. When a defect of parties appears in the petition, the defendant may demur. Where they do not appear in the petition they may be taken advantage of by answer, and if no objection be taken,
[442]*442either by demurrer or answer, the defendant shall be deemed to have waived the same. [Code, § 91.] Without deciding whether the landlord could have been joined or not we do not think there was any defect of parties in this case. The decision on the second motion was right for the same reason, and the further one, that the evidence at that time showed that the plaintiff had settled the rent and his lessee had made no deduction on account of the damages done. It was in Mitchell’s testimony, subsequently given, that the facts are made to appear as is claimed by the plaintiff. On any of the grounds the motion was rightly overruled.
««nortesthn0. In the progress of the trial while the plaintiff was introducing his testimony, and before any testimony had been offered by defendant, and while the witness was being examined in chief, the court, over defendant’s objection, allowed the witness, Mitchell, to testify as follows: “I had a talk with defendant on yesterday, and he said if I did not go home and not testify he would kill me, or make it cost me something more than the damages.” The admission of this testimony was clearly wrong. It tended to throw no light on any of the issues in the case, and could only be used to create a prejudice in the minds of the jury against the defendant, at a time when such feelings should be carefully excluded. In this connection it seems proper to notice the instructions of the court on this point. The defendant asked that the jury be instructed to disregard all evidence of threats made by defendant against the witness, Mitchell. The court refused to instruct, but told the jury that they might draw such inferences from admissions, threats, or other statements made, by either of the parties, as in their judgment were correct. This seemed to give judicial sanction and force to the testi[443]*443mony, and was calculated, in our judgment, to mislead tlie jury. Their duty was to pass upon the rights of the parties as presented by the testimony, irrespective of the good or bad character of either of the litigants. If the defendant was a bad man, that fact gave the plaintiff no right to recover damages against him; but by this instruction, as well as by the previous jad mission of the testimony, the jury were allowed to take into consideration a fact which represented the defendant in á most unfavorable light; which represented him as unwilling to submit his case fairly to the tribunals appointed by society to settle the conflicting claims of its members; and further, as a man who would resort to the worst of crimes to prevent the facts of his case from being presented in a perfectly lawful way to such tribunal. The mind naturally revolts from such conduct, and the jury retired to make up their verdict with this evidence still ringing in their ears and impressed upon their attention by the charge of the court. Under such circumstances it could hardly have failed to influence their minds in a case of closely balanced evidence such as the record discloses, on at least one of the points necessarily involved in the trial of this cause. Whatever reprobation or punishment the party using such means to interfere with the due administration of justice may deserve, it is not by giving a verdict against him in an action of this character that such punishment should be sought. The testimony was inadmissible and the instruction erroneous.
The remaining question-in this case arises upon the instructions. Ten were asked by the defendant, of which the first and tenth were given and the others ^refused or modified materially by the court. To this action of the court no exception was taken and, of course, will not be considered by this court. But the instructions actually [444]*444given were excepted to, and raise much the same questions as would arise upon the instructions refused.
The second, third, seventh, ninth and tenth instructions arc all applications of the law relative to inclosuros and the rights and liabilities of persons allowing their stock to run at large, and of persons having their crops damaged by such stock by reason of the fences not being such as the law requires, and taken together embrace about these propositions: It was the duty of the plaintiff to protect his crops by a lawful fence; but even if he did not have such a fence the defendant would still be liable if ho willfully, carelessly or negligently permitted his stock to trespass upon and injure the grounds and crops of the plaintiff: That the defendant was at liberty to turn his stock upon the commons to graze, and if such stock should wander upon the premises of plaintiff through an unlawful fence and then should damage plaintiff’s crops, the plaintiff cannot recover therefor, unless he willfully, carelessly or negligently permitted his stock to so trespass: and that it was not negligence to permit his stock to run at large.
There is some difficulty, not so much in determining the law as in making an application of its principles to this case.
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By the Court,
Kingman, C. J.
The plaintiff' in error was sued for damages done by his stock to the growing crops of the defendant in error. A trial was had which resulted in a verdict and judgment against the plaintiff* in error. He brings the case to this court, alleging various errors for which he claims that the judgment should be reversed. These alleged errors will be examined in the order in which they are presented.
Pl.BATOTNOS : PBtition, prayer of. First. There were two grounds of action sep- ' arate]y stated ill tile petítlOll. Ill tllO filSt there was no prayer for judgment. The petition closed with a prayer for judgment for one hundred dollars, a [441]*441sum larger than the verdict or judgment. The testimony applied to both counts in the petition. There was no error in this. The prayer for relief went alike to both counts. Marquett v. Marquett, 12 N. Y., 341.
Description ot? the close. Second. The petition describes the land upon x > a which the alleged trespasses were committed as the land of the plaintiff, in, Johnson county. This' description is sufficient. It was enough at common law. [1 Chit. Pl., 503.] The reference made by counsel to Chitty are to the “new rules,” not in force in this state. None of the authorities cited sustain the plaintiff in error on this point, save where legislation to that effect has preceded the decision. We know of no legislation of the kind in this state.
Plaintiff's Interest in the land: Parties. Third. In the progress of the trial it appeared that the plaintiff was occupying the ground on which the alleged'trespasses were committed as lessee, and that the owner, William Mitchell, was to have a portion of the crop for rent; whereupon the defendant moved the court to make Mitchell a party, which was denied. Defendant then moved the court to dismiss the action because the plaintiff was not the real party in interest, which was likewise overruled.
The decision on the first motion was right. The lessee in possession had a right to his action. He could only recover for the damage done him; but he was not compelled to wait the action of his landlord, nor was it necessary to make the landlord a party to determine the questions at issue.
Even had there been a defect of parties, it could not be reached in this way. When a defect of parties appears in the petition, the defendant may demur. Where they do not appear in the petition they may be taken advantage of by answer, and if no objection be taken,
[442]*442either by demurrer or answer, the defendant shall be deemed to have waived the same. [Code, § 91.] Without deciding whether the landlord could have been joined or not we do not think there was any defect of parties in this case. The decision on the second motion was right for the same reason, and the further one, that the evidence at that time showed that the plaintiff had settled the rent and his lessee had made no deduction on account of the damages done. It was in Mitchell’s testimony, subsequently given, that the facts are made to appear as is claimed by the plaintiff. On any of the grounds the motion was rightly overruled.
««nortesthn0. In the progress of the trial while the plaintiff was introducing his testimony, and before any testimony had been offered by defendant, and while the witness was being examined in chief, the court, over defendant’s objection, allowed the witness, Mitchell, to testify as follows: “I had a talk with defendant on yesterday, and he said if I did not go home and not testify he would kill me, or make it cost me something more than the damages.” The admission of this testimony was clearly wrong. It tended to throw no light on any of the issues in the case, and could only be used to create a prejudice in the minds of the jury against the defendant, at a time when such feelings should be carefully excluded. In this connection it seems proper to notice the instructions of the court on this point. The defendant asked that the jury be instructed to disregard all evidence of threats made by defendant against the witness, Mitchell. The court refused to instruct, but told the jury that they might draw such inferences from admissions, threats, or other statements made, by either of the parties, as in their judgment were correct. This seemed to give judicial sanction and force to the testi[443]*443mony, and was calculated, in our judgment, to mislead tlie jury. Their duty was to pass upon the rights of the parties as presented by the testimony, irrespective of the good or bad character of either of the litigants. If the defendant was a bad man, that fact gave the plaintiff no right to recover damages against him; but by this instruction, as well as by the previous jad mission of the testimony, the jury were allowed to take into consideration a fact which represented the defendant in á most unfavorable light; which represented him as unwilling to submit his case fairly to the tribunals appointed by society to settle the conflicting claims of its members; and further, as a man who would resort to the worst of crimes to prevent the facts of his case from being presented in a perfectly lawful way to such tribunal. The mind naturally revolts from such conduct, and the jury retired to make up their verdict with this evidence still ringing in their ears and impressed upon their attention by the charge of the court. Under such circumstances it could hardly have failed to influence their minds in a case of closely balanced evidence such as the record discloses, on at least one of the points necessarily involved in the trial of this cause. Whatever reprobation or punishment the party using such means to interfere with the due administration of justice may deserve, it is not by giving a verdict against him in an action of this character that such punishment should be sought. The testimony was inadmissible and the instruction erroneous.
The remaining question-in this case arises upon the instructions. Ten were asked by the defendant, of which the first and tenth were given and the others ^refused or modified materially by the court. To this action of the court no exception was taken and, of course, will not be considered by this court. But the instructions actually [444]*444given were excepted to, and raise much the same questions as would arise upon the instructions refused.
The second, third, seventh, ninth and tenth instructions arc all applications of the law relative to inclosuros and the rights and liabilities of persons allowing their stock to run at large, and of persons having their crops damaged by such stock by reason of the fences not being such as the law requires, and taken together embrace about these propositions: It was the duty of the plaintiff to protect his crops by a lawful fence; but even if he did not have such a fence the defendant would still be liable if ho willfully, carelessly or negligently permitted his stock to trespass upon and injure the grounds and crops of the plaintiff: That the defendant was at liberty to turn his stock upon the commons to graze, and if such stock should wander upon the premises of plaintiff through an unlawful fence and then should damage plaintiff’s crops, the plaintiff cannot recover therefor, unless he willfully, carelessly or negligently permitted his stock to so trespass: and that it was not negligence to permit his stock to run at large.
There is some difficulty, not so much in determining the law as in making an application of its principles to this case. There is nothing in the testimony shown by the-record (and the evidence seems to be all in it, though it is not so stated) which tends in the slightest degree to show any willful, careless or negligent conduct on the part of the defendant, save that he turned his stock upon the prairie to graze, from whence they strayed into the inclosúre of the plaintiff through a fence abundantly shown to be not such -as the law requires. If such be the facts, the repeated use of the terms carelessness and negligence had no proper place in the instructions, because they were not applicable to the evidence.
[445]*445But the instructions were erroneous in any state of the case. There was no explanation of the words negligence or carelessness, or of the different degrees of each of them, so that the jury were at liberty to give a verdict against the defendant if he was guilty of the want of the slightest possible degree of care; carelessness and negligence are nearly equivalent terms.
The one implies heedlcssness or inattention, and the other an omission to do a thing which a person ought to do, and of each there are degrees running from the slightest possible remission of attention to one’s duties, from which no man is exempt, to the most reckless disregard of all one’s obligations.
We suppose it to be a principle of law of general application, that a person himself guilty of negligence in a particular matter cannot recover of. another whose negligence equally contributed to the injury. Where both parties are in the wrong there can be no recovery of the one against the other. The law will not apportion the damages suffered by wrong-doers. These are merely different ways of expressing the same rule, so general in its application as to have become- axiomatic. In this case, if the defendant was careless or negligent of his stock, the plaintiff was equally so as to his fence, and the carelessness of both contributed to the unfortunate result. The instructions, in effect, are that the plaintiff could not recover if he was negligent, unless the defendant, also, was negligent, thereby authorizing the jury to infer that however defective was the fence of plaintiff, yet if the defendant was Careless or negligent of his stock a recovery coidd be had. This is not the law. We understand the law of inclosures in this state to be, that before a party can recover for injuries done to his crop he must protect it by a lawful fence. Failing to have such a [446]*446fence, he is deemed by the statute tobe so negligent of his property that he cannot recover damages for trespass thereon occasioned by reason of the defective fence. In effect the statute has declared what constitutes negligence in such a case. “We do not intend to say that when the acts of a party are of such a character as to show a willful intent to commit a trespass, a recovery may not be had against him even though the injured party may not have his grounds inclosed by a lawful fence. In such a case it is not carelessness or negligence that is the cause of the injui-y. It may include both, but something more is necessary to authorize a recovery. The object of the law of inclosures is to permit stock to run at large and graze on the prairie and relieve the owners thereof from an action for damages, should they wander upon the land of another, unprotected by a lawful fence.
It is not to protect a wanton trespasser, or a man who shows rather an intention to injure his neighbor than to enjoy the benefits the law allows him. Such conduct would not be negligence or carelessness in the ordinary acceptation of those terms. It would not be a mere heedless inattention, but a willful or wanton trespass not intended to be protected by our fence laws'. But when the plaintiff in a case abundantly shows a want of care which the law requires on his part, he cannot recover from a defendant chargeable only with a like want of care. He must show that the defendant’s negligence was so gross as to amount to a willful or malicious want of care, to entitle him to recover, and the law should be so explained to the jury. "We think the instructions on this point were erroneous in not explaining what degree of negligence was necessary to be shown on the part of the defendant to entitle the plaintiff to recover.
¥e think the fourth instruction fairly presented the [447]*447law on tbe point therein involved. The law of the fifth and sixth we have already considered iu this opinionl For the errors indicated this cause must be reversed and a new trial ordered, in. conformity with the principles herein indicated.
All the justices concurring.