#### Thatcher Blake, Appellant, v. Charles Dow, Appellee.

APPEAL FROM WINNEBAGO.

In an action of trespass quare clausum fregit, it is sufficient to show in defense authority to gather the corn, and to feed cattle upon the stocks after the harvest. It is the province of the jury to determine upon the weight of the evidence.

The statement of the case is made in the opinion of the court. The case was tried before Sheldon, Judge, and a jury, at September term, 1855, of the Winnebago Circuit Court. There was a verdict and judgment for the defendant, the appellee in the court below. ihe motion for a new trial was overruled. The plaintiff below brought this appeal.

T. L. Dickey, for Appellant.

J. L. Loop, for Appellee.

Skinner, J.

This was an action of trespass quare clausumfregit.

The defendant below pleaded not guilty, with notice of special matter in defense, that before the committing of the supposed trespasses, the plaintiff and defendant made a certain contract, whereby the defendant agreed to gather certain corn of the plaintiff standing upon the close in question, in consideration whereof the plaintiff agreed that the defendant should have therefor the stalks and the privilege of depasturing the close after the harvesting of the corn; that the defendant did, in pursuance of the contract, gather the corn, and after the gathering thereof depasture, etc., and that these were the same supposed trespasses alleged.

Tire cause was tried by jury who found the defendant not guilty, and the court refused a new trial. The defendant proved the contract alleged, performance of the same by him, and that the cattle, proved by the plaintiff to have been in the close in question, were not in the ungathered corn, but were kept upon the close, where the corn was gathered, for the purpose of feeding the stalks. The evidence was conflicting as to whether the cattle were in the portion of the close where the corn was ungathered. It was, however, the province of the jury to determine upon the weight and preponderance of the evidence, and the facts stated in defense and which they were authorized, from the evidence, to find proved, aside from any question about the fence, "gave the defendant the right to depasture the stalks of the gathered corn upon the close, and were a good defense.

*262The court, therefore, properly refused to disturb the verdict, and we find no error in the record.

Judgment affirmed.