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 were in the custody of the law, under and by virtue of process, for the purpose of enabling the jury to deduct from the aggregate damages, the damages done the goods while in such custody.

9. PRACTICE:. While under the old practice a portion of the damages only might have been proved and recovered in an action vi et armis, and another portion only in an action of trespass on the case, under the Code all may be shown and recovered under the complaint stating the simple facts.

10. : . All distinctions in old forms having been abolished, all damages may be recovered in one action, that flows from the original trespass, and the original trespasser must respond to the extent of the damages.

The complaint in this action sets forth, that during the month of February, 1873, the plaintiffs were co- partners, engaged in the mercantile business on James River, in Dakota Territory, near the point where the Northern Pacific Railroad crosses said river. That plaintiffs' stock consisted of a general assortment of merchandise. That on the 23d day of February, 1873, the defendants unlawfully, maliciously and with force and arms entered plaintiffs' place of business, and took and carried away all of the goods therein of the value of six thousand dollars, and converted the same to their own use. The complaint concludes with the usual prayer for judgment.

Defendants in the third count of their answer, allege "that all the country at, and near the point where the Northern Pacific Railroad crosses the James river, was, on the 21st day of February, (1873) and for a long time had been, and still is, Indian country, within the true intent and meaning of the Act of Congress, entitled ^ An act to regulate trade and intercourse with the Indian tribes and to preserve peace on the frontier,' approved June 30, 1834.'"

This portion of defendants' answer was, on motion of plaintiffs, stricken out, when they asked and obtained leave to file a separate and amended answer, in which they allege in substance:

1. That at the time of the alleged trespass defendant Bates was a Captain, and defendant Yeckley a Lieutenant in