OpmioN,
Me. Justice McCollum :We discover no error in the refusal of the appellant’s fourth point. There was some conflict in the evidence respecting *473the term, for which the appellee rented the ten-acre lot, but it did not authorize the court to say that he was a trespasser in turning his cattle into it. He was not a cropper; he rented the lot for twenty dollars, and whether his term had expired at the time of the alleged trespass, was a question for the jury under the evidence. The court could not declare as matter of law that during that term he had no right to pasture his cattle there. There was no restriction in the lease as to the use of the lot. He was entitled to its product for one, or two years, as the jury might find the agreement. Any use that he might choose to make of it, consistent with the rules of good husbandry, was admissible during his term. In the presence of his cattle there, feeding upon crops which were admittedly his, we discover no violation of any provision of the lease.
The act of April 18, 1807, relating to strays, does not govern this case, because that is applicable only to cattle found trespassing in an enclosed and improved field. The cattle included in this replevin were not so trespassing, and the appellant knew it. They were in his pasture adjoining the lot which the appellee had rented, and between these fields there was no fence. If the appellant bad taken them on the lot of the appellee, or in the highway, it is not claimed that be could find protection or justification in the act of 1807. Jurisdiction under tbat act is founded upon the facts recited in it; and if these are not present, the taking is a trespass, and for a detention in pursuance of it, replevin is an appropriate remedy. A right to take and impound cattle exists when they are found trespassing in the taker’s enciosed and improved field, and in such case the proceedings must be in strict conformity with the statute, or the taker will be held as a trespasser ab initio. But, when the taking is unlawful, proceedings under the stray law will neither legalize it, nor take away the common-law remedy of the owner. It is proper to add that in this case there is not a spark of evidence that such proceedings were resorted to. '
The specifications of error are dismissed, and the judgment is affirmed.