delivered the opinion of the court.
1. If the plaintiff, through mistake, led the defendant into error, as to the ownership of the timber, such mistake would not have the effect of vesting the property of the timber in the defendant. The defendant would still be liable to the plaintiff for the value of the trees. As this action was commenced before a justice of the peace, and the complaint was in the form of an account, and as the recovery was limited by the instruction given for the plaintiff to the amount of damages arising from the mere taking of the timber, we see no reason for disturbing the judgment, or for turning around the plaintiff to another action.
The facts stated in the defendant’s instruction were evidence in mitigation of damages, or if they justified the trespass, would not have the effect of depriving the plaintiff of his property. This court will not disturb verdicts on the ground that they are against the weight of evidence.
.the judgment will be affirmed.