This action was originally brought by the defendant in error, plaintiff below, against plaintiff in error, defendant below, before a justice of the peace, in the city of Wellington, in Sumner county, to recover damages on account of the alleged trespassing by stock upon a growing wheat crop, and also to recover the expenses of keeping such trespassing cattle. The case was twice tried before a justice of the peace, by a jury. Upon the first trial the jury failed to agree. On the second trial the jury returned a verdict for the plaintiff below, and assessed his damages at the sum of fifty dollars, and also the further sum of twenty-two dollars and fifty cents for keeping the cattle taken up by him while trespassing. Judgment was rendered upon the verdict, and the case taken to the district court upon a petition in error. That court affirmed the judgment rendered by the justice of the peace, and the plaintiff in error, defendant below, brings the case here to reverse the judgment of affirmance.
If any errors were committed in the final trial before the • justice of the peace, they concern instructions asked for, and instructions given, but excépted to. Conceding that the jury were improperly directed, and that the instructions asked for ought to have been given, it was the duty of the district court to affirm the judgment of the justice of the peace under the petition presented to it, and it is our duty likewise to affirm its judgment. (Theilen v. Hann, 27 Kas. 778; Thompson v. Brooks, 29 id. 504.)
The judgment of the district court will be affirmed.