15. Whether the word "unlawfully," would be essential in a declaration in this action or not, the words with "force and arms," it seems would be sufficient. Herndon v. Bartlett, 4 P. 481. 16. The property of another may be destroyed under many circumstances, and yet the act be wholly justified, as where one in defence of a family kills a wild bull, the property of a neighbor.'

Russel v. Barrow, 7 P. 107. 17. In an action of trespass under the statute for cutting down trees, plaintiff must by the statement in his declaration bring himself within the terms of the statute, by setting forth every circumstance material to a proper description of the act. Blackburn v. Baker et al. 7 P. 284.

18. The actual occupancy of the one half of a quarter section does not draw after it the possession of an adjoining quarter section of unimproved and unoccupied land, over which he has exercised acts of ownership, by cutting logs for his saw mill, so as to authorize him to maintain trespass quare clausum fregit against one who has also cut logs thereon for his mill, and who was in the occupancy of land as near it as that occupied by plaintiff.

Ibid. 19. Constructive possession, as contradistinguished from actual possession, never exists in the absence of title.

Ibid. 20. In trespass quare clausum fregit, it is competent to acquit one defendant and find the other guilty, and assess the damages against him. Ibid. 21. In trespass for assault and battery, evidence of provocation not immediately preceding and connected with the assault, inadmissible. Terry et al. v. Eastland, 1 S. 156.

22. In such action plaintiff may prove that he was pulled about and de tained and held by defendant, if it be part of same assault, though no imprisonment is laid in the declaration, and defendant may show in mitigation of damages, that plaintiff consented to be whipped.

Logan v. Austin, 1 S. 476. 23. In joint action of A & B, the jury on writ of enquiry, must find a joint verdict, and cannot assess separate damages.

Callison et al. v. Lemons, 2 P. 145.

24. In trespass against a party and an officer, for illegally taking the goods of the plaintiff, the officer, (no objection appearing to be made against the legality of the execution) may justify alone on the process under which he has acted. Fortner v. Flanagan & Driver, 3 P. 257.

25. Where in such case, under the plea of justification, filed by both the party and the officer, instructions were asked generally of the court, which if given would have operated injuriously to the officer, it was held that the instructions should have been sought in reference to the particular party to whom applicable, and not being so requested, were irrelevant, and the court was not bound to respond to them.

Ibid.

26. A plea to an action against one for trespass in taking goods, that "the goods were taken as sheriff, by virtue of a fieri facias," estops the defendant afterwards from alledging that the writ was not served upon him by the proper officer. Roberts v. Beeson, 4 P. 164. 27. The want of authority in one to execute process is no ground of motion to quash, but must be taken advantage of by plea. Ibid.

28. A master cannot maintain trespass for the killing of his slave, if by his collusion, the slayer has been discharged from prosecution for the felony. Morgan v. Rhodes, 1S. 70.

29. Trespass on land for cutting timber may be maintained by one having title without actual possession. Gillespie v. Dew, 1 S. 299.

30. In trespass, a plea of justification under process must specify the process particularly, and state every fact necessary to show the justification. Harrison v. Dew, 2 S. 350,

31. And the process must be correctly described, if there be a variance it cannot be given in evidence. Ibid. 32. Under the general issue in trespass for taking goods from the plaintiff's possession, the defendant cannot go into evidence to show, that the sale under which plaintiff holds is fraudulent.

lbid. 33. A party who procures an illegal arrest to be made, is liable in trespass for false imprisonment, though not present aiding and abetting.

Clifton v. Grayson, 2 S. 412. 34. It cannot be pleaded in justification to an action of trespass, for false imprisonment, that the defendant had reason to believe the plaintiff a murderer, whose description he answered.

Sugg v. Pool, et al. 2 S. & P. 196.

35. Such facts can only go in mitigation of damages. Ibid. 36. In an action of trespass against a sheriff, for taking goods, he cannot under the general issue, show that the goods were taken as the property of the plaintiff's father, and that they were the property of the latter, though in the plaintiff's possession. Davis v. Hooper, 4 S. & P. 231.

37. In trespass against sheriff for wrongfully taking goods, under an execution in attachment, the defendant in the attachment is not a competent witness to prove that he had sold the goods to the plaintiff for valuable considBurns v. Taylor, 3 P. 187.

eration.

38. In trespass against a sheriff for taking goods, the property of a plaintiff, the record of an attachment cause, in which the plaintiff is neither a party or privy (its relevancy to the issue being not otherwise shewn) is no evidence for the defendant.

Ibid.

39. Where goods were levied on under an attachment by a sheriff's deputy, and the goods were in possession of a stranger, whose receipt was taken for their delivery, and upon his subsequent delivery were sold by the deputy-held that trespass will lie against the sheriff for the act of his deputy on this levy and sale.

See Sheriff Case,

1bid.

TRESPASS AND EJECTMENT.

1. Trespass to recover possession may be maintained on a contract, be tween the owner of the fee and plaintiff, in which it is agreed that plaintiff shall settle, and within three years make certain improvements on the land, and on performance of certain conditions to have title in fee; and a stranger to the contract cannot resist the recovery of possession, on the ground that plaintiff has not performed, or, has forfeited its conditions.

White V. Saint Guirons, A. R. 331. 2. In such action a right of entry and possession is sufficient; and it is not necessary to prove a previous possession in plaintiff, nor an actual ouster.

Ibid.

3. The plaintiff may recover, though the defendant be in possession of less than is declared for. Ibid.

4. In such action, damages for mesne profits, as well as the possession, may be recovered, Ibid. 5. In ejectment, the identity of the premises may be proved by parol. Bullock v. Malone, A. R. 400.

6. In trespass to try title-a final certificate under the act of Congress, settling Spanish claims, is sufficient evidence of title, and a trespasser cannot go beyond it to question the right. Richardson v. Hobart, 1 S. 500.

7. In trespass to try title, the plaintiff claiming a part of the premises as tenant in common with the defendant; the defendant not being himself a mere trespasser, may to defeat the plaintiff prove that a stranger has better title to the portion claimed, though he does not claim under him.

Jones v. Perkins, 1 S. 512. 8. One tenant, in common, cannot maintain this action against his co-tenant, without proving an actual ouster. Ibid. 9. The statute giving no more costs than damages in certain actions of trespass, does not extend to cases of trespass to try titles.

McGehee v. Evans, 1 S. 589. 10. A previous peaceable possession under claim of title, though for less than twenty years, when there has been no abandonment, is sufficient to sustain ejectment against a trespasser; particularly when there has been a descent cast, or a devise. Smoot & Nicholson v. Lecatt, 1 S. 590. 11. Trespass may be maintained by one having title, without actual possession for cutting timber; no one being in actual possession.

Gillespie v. Dew, 1 S. 229. 12. A case shewing that the tenant in possession was the highest bidder at the United States land sales, does not prove his right of possession, or that the person having title before suing must give him notice to quit. Woods v. Nabors, 1 S. 172. 13. Previous possession of lands, is sufficient evidence of title to authorize a recovery, but only in cases where there is no adverse documentary title. Hallett v. Eslava, 2 S. 115.

14. A certificate of confirmation of title' to lots in Mobile, issued by the register and recorder of land office, under act of Congress 1822, is evidence of good title in the grantee.

Ibid.

15. Such certificate of title accompanied with possession, will overreach a title evidenced by a previous possession mercly, though such possession be of fifteen years standing.

Ibid.

66

16. In trespass to try titles, a deed made to plaintiff as administrator, is admissible in evidence-the words "as administrator" being descriptio persona." Innerarity v. Kennedy & Kitchens, 2 S. 156. 17. One tenant, in common, cannot maintain this action-trespass to try title against his co-tenant, without previous actual ouster, or its equivalent. Foster v. Foster, 2 S. 356.

18. In trespass, to try title against two, though the plea be joint, the jury may find against one, and not guilty as to the other. Ibid. 19. In trespass to try title, the declaration or verdict must ascertain with reasonable accuracy, and to a common intent the precise tract or lot recovered, but scrupulous accuracy is not necessary. Jenkins v. Noel, 3 S. 60.

20. An alien may purchase and hold lands, before office found, and may maintain an action to recover possession.

Ibid. 21. When a plaintiff relies upon documentary title, a complete title must be shewn, and if a material link be wanting his documentary proof should be excluded from the jury. Ibid.

22. The allotments of land made to the French emigrants, under the act of Congress passed 3d March 1817, for the encouragement of the cultivation of the vine and olive, may be assigned by the grantees, as well before as after the performance of the condition of cultivation required by the goIbid.

vernment.

23. In an action of trespass to try titles, in some of the counts of the declaration, the land was described by a wrong number and the verdict was general; held, that the mis-description was cured by the indorsement on the writ. Hamner v. Eddings, 3 S. 192.

24. It is sufficient in such action to describe the land sued for, by designating the number of the tract according to the surveys of the United States. Ibid.

25. In trials of title, the parties are entitled to a jury of freeholders, but that right must be claimed in the court below, and it is not sufficient to reverse the judgment, that the record does not show that the jurors were such.

1bid.

26. A general verdict sustaining the cause of action, as laid in the declaration is sufficient, although it does not specify the land recovered; and the judgment, though informal, if it adjudges to the plaintiff the damages found by the jury and a writ of possession for the land is sufficient.

Ibid.

27. Copies of field notes of the surveys of the public lands, transmitted by the surveyor general, to the several land offices in the districts where the public lands are sold, are not admissible as evidence; aliter, if they were sworn copies, taken from the originals in the office of the surveyor general.

Ibid.

28. When in trespass to try title, the plaintiff adduces a regular chain of title in himself-sufficient for a recovery, and the evidence offered does not resist a recovery, but was clearly inadmissible-held, that the judgment would not be reversed, because of instructions of the court which were not perfectly correct, it appearing they could not have prejudiced the defendant. Scott v. Hancock, 3 S. & P. 44. 29. When title to real estate is defended on grant issued by a foreign power, such grant must be produced, or its loss or destruction legally shewn by a full and entire transcript from the record, before it becomes evidence. Hallett v. heirs of Eslava, 3 S. & P. 105.

30. When it appears that two certificates of confirmation for a lot of land had been issued in favor of different persons, under the act of Congress, which alone considered created title of equal grade; held that the elder was entitled to preference, as evidence of title, unless it could be shewn that it had been improperly issued; and, in such cases, it is competent for the courts

to look to the original evidence of title beyond such certificate, and to determine independently of them. Ibid.

31. And when a certificate of confirmation in favor of one had issued on a claim under a French patent, which was not produced, nor its absence accounted for, which did not appear to have been recorded, as required by law-held, that the possession of the premises by the ancestor of the opposing party, under a claim of right for twenty-four years, anterior to the possession of his adversary, in the absence of any preponderating paper title, was sufficient to warrant a recovery in the action of trespass, to try title. Ibid.

32. The statute of 1812, on the subject of certificate, issued under the acts of Congress, &c. was intended to embrace and equally applies to all certificates that had or might have been legally granted pursuant to acts of Congress, then existing or which might thereafter have been passed, granting "certificates upon any warrant" or order of survey, or to any donation or pre-emption claimants-it also embraces a certificate issued under the act of Congress of 1822, confirming claims to lots in the town of Mobile, &c.

Lewis v. Goguette, 3 S. & P. 184.

33. A certificate of confirmation, issued under this act of Congres, would not however be conclusive against any adverse claim, importing legal title, and any fraud, imposition, or illegality in procuring such certificate, would be open to investigation; but when such certificate is opposed by no title, or by nothing more than a recent possession, though held under a claim or assertion of right, or, even under a long continued possession, the benefit of which had been forfeited by the failure of the occupant to interpose his claim, within the time limited for ascertaining and adjusting imperfect titles; it cannot be doubted that the preference is due to the certificate of confirmation. Ibid. 34. In this action it is not necessary that the plaintiff should show a perfect indefeazable estate in fee simple, to authorize a recovery against one who can establish no legal right, either of property or possession. Ibid.

35. Evidence of sheriff's deed under a sale made by him, not admissible to prove title, without shewing the judgment by which the sale was authorized. Ibid.

36. A certificate of confirmance, issued by the register and receiver of a land office, acting as commissioners under the act of Congress 1822, is competent as evidence in courts of the State, between one claiming under such certificate, and another claiming by possession; and this notwithstanding the certificate is unaccompanied by any distinct warrant of survey and location. Ryder v. Innerarity, 4 S. & P. 14.

37. A transcript of the title upon which such certificate is founded, taken from the land office, properly authenticated, and proved to be a true copy by a competent witness, cannot be rejected as evidence, on the ground that it appears to be a sworn copy of a translation of the original. Ibid.

38. A decree in chancery authorizing the sale of all the real estate of a party, is good as evidence against all the world, so far as the transfer of the right of such party to another, or to a purchaser under such decree is concerned. Ibid.

39. Declaration in trespass, to try title, describing the land as "the south half of the east half of the south-west quarter of section," &c.; held, sufficiently certain as to boundary and quantity.

Sawyer v. Tilts, 4 S. & P. 365. 40. But a verdict, that the "plaintiff recover one moiety of said mills, claimed in the declaration"-held, not sufficient to authorize a judgment, that the plaintiff receive one moiety of the said mills and land.

Ibid.