#### D. H. DEXTER, Plaintiff in Error, *vs.*JAMES COLE, Defendant in Error.

ERROR TO THE MILWAUKEE COUNTY COURT.

Any -unlawful interference with, or acts of ownership over, property, to the exclusion of the owner, is sufficient to sustain an action of trespass.

To maintain trespass *de bonis asportatis,*it is not necessary to show actual forcible dispossession of property.

The intent does not necessarily enter into trespass; it is sufficient if the act be committed without any justifiable cause, even though accidentally and by mistake.

"Where there is some evidence to support the verdict, the judgment will not be disturbed on account of insufficiency of the proof merely.

The plaintiff declared in trespass, charging the defendant with taking- and driving away twenty-two sheep, the property of the plaintiff, to his damage one hundred dollars. Plea, general issue. The cause was tried before a justice of the peace, to a jury; when it appeared from the evidence that the defendant, who is a butcher at Milwaukee, was driving some sheep he had purchased, toward the city, upon the highway, when they became mixed with a small lot of twenty two sheep of plaintiff, which were running at large upon the highway. The defendant drove the whole flock into a yard near the road, for the purpose of parting them, and did throw out a number which he did not claim, and pursued his way with the remainder to his slaughter house at Milwaukee, where they were slaughtered in his business. The evidence tended to show, and the jury found it did show, by the verdict rendered, that some four of plaintiff’s sheep remained in the flock, and were driven to Milwaukee, and slaughtered by defendant. The verdict and judgment before the justice were for the plaintiff.

*320The cause was removed to the county court of Milwaukee county by writ, of *certiorari,*when the defendant alleged the following errors in the justice’s judgment, to wit:

I. That from all the testimony in the case, it does not appear that the defendant ought to be charged as a trespasser.

II. That there is no testimony that the defendant ever took and converted the sheep to his own use.

III. That from the testimony it appears that the action should have been trover, and not trespass, there being no proof of the unlawful taking.

IY. The testimony is uncertain and insufficient to found a verdict upon in any iorm of action.

Y. The verdict is against the evidence.

Upon hearing, on c&rtiorcuri, the county court reversed the judgment of the justice, and rendered a judgment against the plaintiff before the justice for costs; to reverse which judgment of the county court, this writ of error'is brought.

*James IT. Tame <& Son,*for plaintiff in error.

Trespass was the right form of action in this ease.

Any unlawful interference with the property of another, is sufficient to subject the party to an action of trespass or trover. 1 Ch. PL, 168, 170 ; *Morgan vs. Vcmlelc,*8 Wend., 594; *Win-tringham vs. La*Foy, 7 Cow., 735 ; 1 Wis., 352; Rev. Stat. § 43 Ch. 88; 12 Wend., 39, 40.

And though there be no wrong intent. 1 Ch. PL, 163, 171.

There was evidence before the jury in this case to sustain their verdict. Enough is returned to do so, though not all is returned, which appears from the return itself.

Where some evidence has been offered to a justice of the’ joeace, the court will not reverse his judgment merely because it was too light, or insufficient to support a j udgment. *Tishev vs. Ohcmdler,*1st John, 505; 15th Barb., 286; Nightingale’s Petition, 11 Pick., 168 ; 10 Wen., 178 ; *Bogart vs. Morse, 1*Comstock, 377; *Gaines vs. Betts,*2 Doug. Mich., 98.

*Butler, Butbrick cmd Oottrill,*for defendant in error.

*321This actión is *trespass,*and the plaintiff'in order to á recovery nrust have proved affirmatively r 1st.' Thaf’the property was in his possession at the time of the'injury;’ and,2ndj That the injury was committed by the defendant with forcé." "* ’ -These two general principles govern in all actions-brought in this form, and in the absence of preiof "establishing both’thésd facts, the plaintiff cannot ‘recover: 2' Gr: on-Ev.; .see. 613,' *ei seq. ;*1 Oh. PL, 166/ *Vincent vs.*Stinebour/ 7 Yt: Y2."

‘Conceding even that the proof in the case" clearly shows ’that the right of possessio'n’of the property claimed was in the'plkin-' tiff, and'that some of his sheep had in fact been slaughtered by the defendant, it’is difficult "to 'perceive upon what''ground,'hi vifew'of the' otherproofs in'the case, this"-action’of *trespass'c'&n-*be stiStaitied;'' In"' *Vitibéntrn. 'StemboVr,*above cited,* which Was' ali action of fréspassj'the COürt sáy-that the principle of law,* “which is laid down by all writers upon this BUbjectyaiid*' “ which Is gathered from,- and confirmed by the-whold’-ser'i'e^of “ reported cases, is that no one Can be’ made'responsible * in an “ action of trespass, for consecpienees, when he could not have “ prevented those consequences by prudence and care.” *Par-Tier vs.*Walrod; 13 Wend., 296.

*By the*Oourt,

Colts, J.

We have no doubt but the action of trespass would lie in this case. In driving off the sheep, the defendant in error without doubt unlawfully interfered with the property of Dexter; and it has been frequently decided, that to maintain trespass *de bonis*asportatis, it was not necessary to prove actual forcible dispossession of property ; but that evidence of any unlawful interference with, or exercise of acts of ownership over, property, to the exclusion of the owner would sustain the action. *(Gibbs vs. Chase,*10 Mass. 128; *Miller vs.*Baker, 1 Met., 27; *Phillips and Brown vs. Hall, et al.,*8 Wend., 610; *Morgan vs. Varick,*Id., 587; *Wintringhouse vs. La*Foy, 7 Cowen, 735; *Reynolds vs. Shuler,*5 Id., 325; 1 Chitty Pl., 11th Arner. Ed., 170, and cases cited *322in the notes.) Neither is it necessary to prove that the act was done with a wrongful intent; it being sufficient if it was without a justifiable cause or purpose, though it were done accidentally, or by mistake. 2 Green. Ev., section 622; *Grulle vs. Snow,*19 J. R., 381. There is nothing inconsistent with these authorities in the case of *Parker vs. Walrod,*13 Wend, 296, cited upon the brief of the counsel for the defendant in error.

Upon the other point in the case, we think there was some evidence to support the verdict of the jury, and therefore the judgment of the justice should not be reversed because the proof was insufficient. It was the province of the j ury to weigh the evidence and determine what facts were established by it, and the county court ought not to reverse the judgment, because the proof was not sufficient in its opinion to justify the finding of the jury.

The judgment of the county court is therefore reversed and the judgment of the justice affirmed.