The justice erred in receiving evidence of what it was worth to keep the hogs after he had taken them. That was no legal element of damages which the plaintiff had the right to recover in an action for the trespass. The law had furnished him a full remedy for such keeping, if he had chosen to avail himself of it, (chap. 286, Sess. L. of 1861, pp; 658, 659 ;) instead of which he resorted to the common law action of trespass. This he had the right to do, but in that case all .that he could lawfully recover would be the actual damages for the trespass of the hogs. He had no right to keep the hogs in his possession indefinitely and then recover for their keeping. It can not be claimed on the part of the plaintiff that he has pursued the directions of any law, statute or cpmmon, authorizing distress taken damage feasant. By shutting up the hogs in his own pen and keeping them there, as detailed by the evidence, he became a trespasser ab initio. It was his own voluntary act without the knowledge or consent of the defendant. Assuming that the verdict is no larger than the evidence shows the damages for the trespass of the hogs really was, it is impossible for us to say whether it was not all, or some part of it, for the keeping of the hogs.
The judgment of the county court, reversing that of the justice, should be affirmed.
Ordered accordingly.
Welles, E. D. Smith and Johnson, Justices.]