him, did not exempt the defendant, if any property was withheld from his ENs of the law, shall be advised by his counsel, flysated to him, that certain items of property are do La schedule, and be omits them, he is not guilty Vibing the facts to his counsel, and, by actshess destre to conform to the law. N NET IR the law, the false schedule must have been made Me ane and with the mean to defend his creditors. The Achone hang sahisted the mitigating deemstances must be Atnan de zerved, the famòtient Scent wil Nine AW NASI NU MW of the law." Ian ANY & ART-Mistahs - There a person bot- A gameper of Lord Ducie, at the prisoner had set three of which the pheasant was wpt a bra, segs, took up the wires and lawak ander sppeared, that the prisWe we depa sem got my wires? " The We miss caught in one of them. CORDING is seized them for the use of Die wall bare no property in either the Zoopet me te & robbery to take them from to the jury to say whether the CORE ISNT Ad pheasant were his property; won t baving them in his possession, Eder a bona fide impression that he property, there is no animus Verdict, not guilty. § 169. Setting Fire to Property-Mistake of Right. — In R. v. Twose,1 the prisoner was indicted for having set fire to some furze growing on a common, it appearing that persons living near the common had occasionally burnt the furze to improve the growth of the grass, though the existence of any such right was denied. Said LOPES, J.: "If she set fire to the furze, thinking she had a right to do so, that would not be a criminal offense." § 170. Trespass Belief of Right to Property. - Taking property under a bona fide claim of right, is not trespass,2 as to remove a fence,3 or to cut down trees, or remove a portion of a house." In Dye v. Commonwealth, the defendant was indicted for carrying away two bags, the property of Benjamin Street. He was convicted, but a new trial was granted by the Supreme Court "because it appears to us that the verdict was against the law and the evidence. Of the property, which is the subject of the alleged trespass, the defendant was the general fee simple owner, by purchase from Hardesty, the former owner. The prosecutor was at most a bailee, having a special or qualified property. A controversy arose between them as to the right of the prosecutor to retain the property until paid the expenses of keeping, and as to the quantum or proper charges for these expenses. The defendant, the owner, without a breach of the peace, took possession of his property; leaving the prosecutor to his legal remedy against himself or Hardesty, whichever was liable for his demand. It certainly was not the purpose of the act of February, 1823, upon which this prosecution is founded, to convert every civil injury, by trespass to real or personal property into an indictable misdemeanor; but it was intended to apply to acts of trespass upon the property of another, committed knowingly and willfully, but not feloniously; which the court interprets to mean, without color of title or claim of right, bona fide, and not feigned or pretended for the occasion. If the defendant did not commit the alleged trespass knowingly and willfully upon the property of the prosecutor, but on the contrary believed it to be his own, and that he had a bona fide right to it, he was not amenable to prosecution for a misdemeanor, under the act of February, 1823; though he may have been guilty of a civil trespass. A majority of the court is of opinion that the facts certified in this case did not warrant the jury in finding a verdict of guilty, because these facts certainly do not establish that the defendant took possession of and carried away property of the prosecutor willfully, without bona fide color of title or claim of right, and knowing or believing it was not his own. Therefore the judgment is to be reversed, the verdict set aside, and the cause remanded for a new trial to be had therein, in conformity with the foregoing opinion of the court." In State v. Newkirk,' CURRIER, J., delivered the opinion of the court as follows: "This complaint was prosecuted in the St. Louis Court of Criminal Correction, and was founded upon the Act of 1869,8 providing for the punishment of certain malicious trespasses. The complaint charges that the defendant willfully, and unlawfully broke and severed from a building owned by the complainant, a lock, plank partition, and certain platform scales, all alleged to be then and there the property of the complainant, and to form a part of the freehold. At the trial 1 14 Cox, 329 (1879). 2 State v. Ellen, 68 N. C. 281 (1873); State v. Hauks, 66 N. C. 612; State v. Dodson, 6 Cold. 10 (1869). • Com. v. Cole, 36 Pa. St. 187 (1856). 4 State v. Kempf, 11 Mo. (App.) 88 (1881); State v. Crosset, 81 N. C. 579 (1879). State v. Newkirk, 49 Mo. 4 (1871). 67 Gratt. 662 (1851). 749 Mo. 84 (1871). 8 Sess. Laws 1869, p. 71, Wag. Stat., p. 462, sect. 56. there was no dispute as to the fact of the severance and removal of the scales and plank partition; but the defendant severed and removed them, claiming the property as his own, or that of the firm in which he was a partner. It was in evidence that the scales and partition were put into the building while it was in the occupancy of the defendant and his partner, as tenants under the complainant, and for their convenience as tenants in the use of the building. It also appeared that these articles were removed before the term expired, but not till after the defendant and his partner had assigned the residue of the term to other parties, who attorned to the complainant. It was in evidence, however, that the new parties were to have the use of the scales and partition for the remainder of the term, under and by virtue of an express arrangement with their assignors. Before the term fully expired, the scales and partition were removed by the defendant, and this is the trespass complained of. Was it in the sense of the statute, willful and malicious? In our view the statute was never intended to apply to a case like this, punishing a party criminally for acting upon a mistaken view of his legal rights. There is not the slightest indication in the evidence that the defendant acted wantonly or otherwise than upon an honest conviction of what he believed to be his rights. He is not punishable for that, however mistaken he may have been as to the respective rights of himself and former landlord. Whether his opinion on the question of legal right was right or wrong, we are not called upon to decide, and therefore express no opinion on that point. The law is liberal towards tenants who make improvements for their own particular and temporary use, and which can be removed without working substantial injury to the rented premises. Primarily, such improvements are removable by the tenant. "Entertaining the opinion that there was no evidence showing malice in the sense of the statute, the judgment against the defendant will be reversed, and the cause remanded. The other judges concur." In Palmer v. State,1 it was held that one who has been for a long time in the habit of using a way across the land of another, and believes in good faith that he has a right to use it, is not guilty of malicious trespass for removing a fence placed across the way. DOWNEY, C. J. "This was a prosecution for malicious trespass, based on an affidavit filed before a justice of the peace, charging that the defendant, on or about the 22d day of March, 1873, at, etc., did maliciously, mischievously, and unlawfully injure a rail fence of the value of fifty cents, the property of Ann E. Wright, James M. Wright, William C. Wright, Sarah Wright, and Laura S. Wright, by then and there throwing said rails of said fence down and upon the ground, to the damage of said Ann E. Wright, etc., in the sum of fifty cents, contrary to the form of the statute, etc. The defendant was found guilty before the justice of the peace, and appealed to the Circuit Court, where, upon a trial by jury, he was again found guilty. He then moved for a new trial, which was denied him, and there was final judgment against him. He moved the court to relieve him from the payment of costs of certain witnesses, summoned by the State, but not examined, amounting to over fifty dollars, but this motion was also overruled. In view of the conclusion at which we have arrived upon the main question in the case, it is not necessary for us to consider the question relating to the taxation of costs. "We shall consider the case upon the question as to the sufficiency of the evidence to sustain the verdict of the jury, which was presented to the Circuit 1 45 Ind. 388 (1873). Court by the motion for a new trial, the overruling of which motion is assigned for error. The prosecuting witnesses are the widow and children of Roderick Wright, deceased, and they own by inheritance from him a tract of land in the form of an oblong, on the south side of which is a public highway, called the Washington and Apraw Road. The defendant's land adjoins that of the Wright's on the north. From twenty-five to thirty years ago, there was a road or lane, extending from the above named highway north, through the Wright land and the land of the defendant. This last named road was never laid out as a public highway, but was used by the public to a considerable degree. This was the condition of things when the Wright land was purchased by Roderick Wright, and the defendant; land was purchased by him. Twelve or fifteen years ago, the travel on the road was so light that the defendant closed up the road through his land, and the public acquiesced in this. He never, however, ceased to use the road himself from his premises through the Wright land to the Washington and Apraw highway. Roderick Wright threatened to stop up the road on his land by hanging gates across it, but on objection made by the defendant, he did not do so. About two years before the trial, Mrs. Wright said to the defendant, that the lane was then used solely by him, and it was hard for her to keep two strings of fence simply for his accommodation. The defendant, at her request, put up the fence on the east side of the lane. She afterwards attempted to bargain with him for the privilege of putting gates across the way, but they did not finally agree. Mrs. Wright then sent her son and another person, and had them build a fence across the way. The defendant having occasion to pass over the way, and finding the fence across it, tore it down and removed the rails out of the way. The Wrights then commenced the prosecution in this case for malicious trespass against the defendant, the affidavit being made by James M. Wright, one of the sons. The ball of snow which at first is easily rolled by a single hand, by its accumulations becomes so great that it can no longer be moved. The single spark will kindle a flame which may increase to a conflagration. 'Behold, how great a matter a little fire kindleth!' "This is a mode of litigation which should not only not be encouraged, but which should receive the unequivocal disapprobation of the courts. The question here involved is one of purely private interest and concern, in which the State has not, and should not have, the least lot or share, except to furnish the necessary tribunal in which the parties may settle the controversy between them by the appropriate civil action. Who doubts if the prosecuting parties had known that they must enter the lists on equal terms with the defendant, employing their own attorney instead of using the State's attorney, and being liable for the costs of the action which they might bring, in the event that they were unsuccessful, in like manner as the defendant was liable for costs if the case was decided against him, that they would have hesitated to embroil themselves and vicinity in a tedious, vexatious, expensive, and perhaps unnecessary lawsuit? There is, in this case, no more real ground on which to prosecute the defendant for malicious trespass than there would be for an action for malicious prosecution of this case, to be brought by the defendant here against the prosecuting witnesses. If there is any question about the defendant's ultimate right to the way in dispute, there certainly is no question as to the fact that he believed in good faith that he had such right, and that it was in pursuance of that belief that he removed the obstruction which had been placed in the way by the prosecuting parties. Even the witnesses for the State testify that, while he was in the act of removing the fence, he stated that, he had a right to have the lane would be very dangerous to allow him, after four years have elapsed, to change his opinion and to call it a felony. "I do not think, however, that it is clear in this case that the prosecution has in any wise been instigated by Lovering. He has but obeyed the law in appearing as a witness, and it is for you to judge of his sincerity. But if you fird that he is contradicted by other witnessess, and has varied in his relation of facts at different times, the infirmity of memory, arising from advanced years and a tender constitution, will probably induce you to acquit him of any intentional wrong. But he has related the circumstances in a manner so positive, that while full credit may be allowed to his sincerity, it must be apparent that he has incurred great risk in speaking of a distant transaction with so much confidence. The circumstances have escaped from the recollection of Morse, Bullard, and Carter, who are young men; while they are confidently remembered and repeated by Mr. Lovering. Lovering is confident that he never consented to discharge the lease till he met Robinson at the corner of State Street and Merchants Row; and he denies that he ever conversed with Robinson respect ing the bonus of fifty dollars, at any other place, or before that time. He also denies that he had ever conversed with Robinson about any other sum. And yet Caleb G. Bascom testifies, 'that Lovering called into the counting-room one day, and that he and Robinson there made a bargain to cancel the lease on Robinson's payment of the rent to the end of the quarter, and for a bonus of a sum between twenty and thirty dollars.' Now you must weigh the testimony of Bascom, which he has testified by a voluntary affidavit, in the same scale of sound judgment with that of Lovering. There is a direct contradiction. One or the other has not spoken the truth. It may not be an intentional falsehood. But it is of great moment; for if Bascom has spoken the truth in this particular, you will have a key to the conduct of the defendant at Lovering's house. If Robinson supposed that he was to pay only twenty-five dollars, and Lovering expected to receive fifty dollars, here was ground for a dispute to arise between the parties touching the settlement. It was a common case of a contract broken off by the misunderstanding of the parties, when they met to settle. And in taking up the money and papers, under these circumstances, and carrying them off, no felony was committed by Robinson, although there might have been fault in the manner. Lovering says that Robinson was in a great passion at the time, and you will hardly think that he himself was cool. Lovering thought himself to be right, and that Robinson was wholly wrong; and it was not a time for deliberation, nor for charitable constructions. And yet if you believe that there was a controversy at that time between Lovering and Robinson, respecting the sum to be paid, the idea of a felony is wholly excluded; and the act of Robinson in taking the money and papers was matter of civil concontroversy, and not of criminal occupation. "In this connection, the testimony of William S. Whitney and William G. Parker of the relation of the transaction by Lovering in the store of Parker, in November or December last, and of David Rice, of a similar relation to him about the same time, in Sea Street, is very material. Whitney says that Lovering did state that Robinson laid the money and the key on the sideboard; that, he, Lovering took it and counted it, and thereupon said it was not correct; that it was not the sum agreed upon. Robinson said it was; upon which a dispute arose, and Robinson took the money and the lease, and put them into his pocket.' In this statement Whitney is confirmed by William G. Parker, who was Lovering's tenant, and present at the time. He said that Lovering |