The order, made when this case was formerly before us, that it should stand for trial, left the whole case open, and did not limit the trial to the question of damages only. Davis v. Stone, 117 Mass. 486.
Upon the facts admitted or appearing upon the trial, the judge may rightfully have found that the plaintiff had not unlawfully or fraudulently intermingled her goods with those of Jenkins, and that she might therefore recover for the taking of her goods by the defendant. Shumway v. Rutter, 8 Pick. 443, 448. Smith v. Sanborn, 6 Gray, 134. His rulings in matter of fact are not open to revision here. Whiton v. Nichols, 3 Allen, 583. Hoar v. Goulding, 116 Mass. 132.
But the occupation of the plaintiff’s house by the defendant with a keeper for seven hours in the middle of the clay in the city of Boston, without making any attempt to begin to remove the goods, or, so far as appears by the bill of exceptions, taking any steps towards such removal, was, as matter of law, unreasonable and made the defendant a trespasser. Williams v. Powell, 101 Mass. 467.
The result is that the defendant’s exceptions must be overruled, and the
Plaintiff’s exceptions sustained as to the second count only.