PART IV. tention. held that a list of the names of a small party who were to join in the attempt, of which the prisoner was to have the command, with his own name at the head of the list as their commander, was admissible as direct proof of the overt Traitorous inacts laid, although not alleged in the indictment. And it seems that the evidence would also have been admissible, although no agreement to provide forty men had been *alleged, but merely a meeting and consultation to way-* 1433 lay the King (h). The publication of treasonable papers may amount to an overt act of treason (i). Writings found in the prisoner's possession, but not published, if plainly connected by their contents with a treasonable design, are evidence of such design, though not published (k). But it seems, that if it be doubtful whether writings found in the possession of the prisoner were connected with the treasonable design charged, they ought not to be read (1). Where the writings are connected with a treasonable object, either by their contents, or by collateral evidence that they were intended to be used in furtherance of that purpose, they may be read, on proof of their having been found in the custody of the prisoner, without proof that they are in his hand-writing (m). (k) Fost. 198; 4 Bl. Comm. 80. Gregg's case, 10 St. Tr. App. 77. Layer's case, 6 St. Tr. 279. Dr. Hensey's case, 1 Burr. 644. Tooke's case, cited East's P. C. 119. Stone's case, 6 T. R. 527. If (say Mr. J. Foster and Mr. J. Blackstone) the papers found in Sidney's closet had been plainly relative to the other reasonable practices charged in the indictment, they might have been read in evidence against him. See Watson's case, 2 Starkie's C. 141. (1) R. v. Watson, 2 Starkie's C. 141. (m) East's P. C. 119. Layer's case, 6 St. Tr. 279. So in case of treason or felony, it may be proved that articles were found secreted in the prisoner's house after his apprehension. In Watson's case (2 Starkie's C. 137) evidence was admitted that a quantity of pikes had been found secreted in the prisoner's house subsequently to his apprehension. Lord Ellenborough, upon that occasion, cited a case from memory, where a butler to a banker at Malton had been taken up on suspicion of having committed a great robbery ; the prisoner had been seen near the privy, and this circumstance having excited suspicion in the minds of the counsel who considered the case during the assizes at York, at their instance search was made, and in the privy all the plate was found; the prisoner was in consequence convicted, no doubt being entertained as to the admissibility of the evidence. PART IV. tention. *In Watson's case (n), where writings had been found at the lodgings of one connected by the evidence with the prisoner, as a joint conspirator, but after the apprehension Traitorous in- of the prisoner, it was held that they might be read in evidence, although no absolute proof was given of their previous existence; strong presumptive evidence having been given that the lodgings had not been entered by any one in the interval between the time of the prisoner's apprehension and the finding of the papers. * 1435 But in Hardy's case, where writings were found in the possession of conspirators with the prisoner, but subsequently to his apprehension, it was held, that as there was no evidence to show the previous existence of the writings, or that the prisoner was a party to them, they could not be read. In cases of this nature, where the offence involves a conspiracy, the declarations, acts and conduct of others proved to have been engaged in the same common design with the prisoner, are usually resorted to for the purpose of proving the illegal and traitorous intention. After proof of an association for such a purpose, all acts done by any of the parties so united in furtherance of the common design, are evidence against the rest (1). Hence, writings sufficiently connected with the general object, which have not been published, but found in the possession of a joint conspirator, are admissible in evidence against the prisoner (o). Upon this point the same principles and rules are applicable as in ordinary cases of conspiracy (p). *It has been already seen, that for reasons of policy (n) 2 Starkie's C. 140. (0) R. v. Watson, 2 Starkie's C. 140. And see the cases cited supra, tit. Conspiracy. (p) Vide supra, tit. Conspiracy, infra, Unlawful Assembly. (1) [The presence of a party, where presence is necessary to guilt, is part of the overt act, and must be proved by two witnesses. An indictment, charging a person with being present at an overt act of treason, cannot be supported by only proving that the person accused caused the act to be done by others in his absence. No presumptive evidence-no facts from which presence can be inferred, will satisfy the constitution and the law. If proof of procurement be admissible upon a charge of presence, such procurement must be proved in the same manner, and by the same kind of testimony, as would be required to prove actual presence. United States v. Burr, 4 Cranch, 499, & seq. Robinson's Report of Burr's trial, Vol. II. 435, & seq. See also Ex parte Bollman and Swartwout, 4 Cranch, 75.] "witnesses in cases of this nature are precluded from disclosing facts the publication of which might be of public detriment (g). TRESPASS. In an action of trespass for an injury to the person, lands, or goods of the plaintiff, the evidence relates, 1. To proof of the possession of the identical lands or goods, 1435. 2. Of the acts of trespass committed directly or indirectly by the defendant against the person, lands or goods of the plaintiff, 1440. 3. To the damages, 1450. 4. To proof of notices of action, 1455. 5. To the defence under the general issue, 1456. Ɛ. On issue taken on the replication of de injuria sua PART 1. An action of trespass quare clausum fregit is local (r), and must be proved to have been committed within the county as alleged. The description of the local situation of the close within a particular parish or township * is also * 1436 material (s). And where the locus in quo is described by sum fregit. its abuttals, a variance from the description of any one Possession. abuttal in evidence will be fatal (t). (1) Supra, Vol. I. p. 106. (r) An action will not lie in the courts of this country in respect of a trespass to land abroad. 4 T. R. 503. (s) Taylor v. Hooman, Moore, 161. Premises laid in the parish of Clerkenwell, proof that Clerkenwell consists of two parishes, although generally known by the name of St. James's, Clerkenwell, held to be insufficient. Ibid. And see 5 B. & A. 221. (t) Thus, if the description be “abutting on the south on the mill of A.," the proof of a mill there in the tenure of A. is essential (B. N. P. 89. Nowell v. Sands, 2 Roll. Ab. 678). But strict literal proof is not essential; if the description be of a close abutting on the mill of A. it is satisfied by proof of such a mill adjoining, although a highway intervene (B. N. P. 89. Nowell v. Sands, 2 Roll. Ab. 678). If the close be described as abutting towards the east, and in fact it abuts towards the north, inclining to the east, it is sufficient. Roberts v. Karr, 1 Taunt. 501. Quare clau PART IV. Quare clausum fregit. Possession. Trespass to lands is an injury to the possession; and as, on the one hand, it is essential for the plaintiff to prove his actual possession of the premises, his title to that possession is on the other hand wholly immaterial as against a wrong-doer (v). The mere prior occupancy of land, however recent, will give a good title to the occupier to recover in trespass against all, except such as can prove an older and better title in themselves (u). So it is no objection that the plaintiff holds under a lease which is void under the stat. 13 Eliz. c. 20, by reason of the non-residence of the lessor (x). And proof of title does not dispense with the proof of actual possession. A lessee cannot support the action be* 1437 fore entry (y); neither can an heir at law *maintain this action against an abater (z); nor can a bargainee, although the Statute of Uses transfers the possession (a) (1). But it is sufficient if he has taken legal possession of part of a farm or estate in the name of the whole, and the locus in quo be part of that entire estate. Thus, by his induction, the parson is put in possession of a part for the whole, and may maintain an action for a trespass to the glebe land, although he has not actually taken possession of the whole (b). (v) The proprietors of a canal, who have erected a dam across a stream with the consent of the proprietors of the land, may maintain trespass against one who injures the dam. Dyson v. Collick, 5 B. & A. 601. [See Ricker & al. v. Kelly & al. 1 Greenleaf, 117.] But commissioners who erect a wall across a navigable river for the benefit of the public, cannot maintain trespass for throwing it down, for they have no property or possessory interest. Duke of Newcastle v. Clark, 2 Moore, 666. [8 Taunt. 602. S. C.] (u) Catteris v. Cowper, 4 Taunt. 547. (x) Graham v. Peat, 1 East, 244. (y) Cook v. Harris, 1 Ld. Raym. 367. (z) Com. Dig. tit. Trespass, B. 3; 2 Roll. Ab. 553. Yet where the ancestor dies seised, and the possession is vacant, the law casts the seisin upon the heir. (a) Com. Dig. tit. Trespass, B. 3; 1 Ventr. 361. (b) Bulwer v. Bulwer, 2 B. & A. 470. So, it should seem, if li (1) [Where the plaintiff purchased a tract of land, sold under an execution on the 10th of Nov. 1804, but the conveyance was not made until the 18th of July, 1805, it was held that he could not recover for a trespass committed between those periods,having neither actual nor constructive possession. M'Millan v. Heffley, 2 Car. Law Repos. 89. But trespass may be supported, in North Carolina, by the owner of wild lands, although he is not in actual possession, Kennedy v. Wheatly, 2 Hayw. 402.] ᏢᎪᎡᎢ IV. One who has exclusive possession of land, although for a limited purpose, as under a contract for the purchase of a crop of grass growing there, or who is entitled to the vesture or prima tonsura, may maintain trespass against any Quare clauone who enters the close and injures the herbage, although Possession. sum fregit. he does it by consent of the owner of the land (c). So one who has only the herbage of a forest or close may bring trespass, as well as he who has the land (d). And the owner of the soil of a public way (e), or mar ket (f), may bring trespass against one who makes any * 1438 use of it extending beyond those privileges which the pubpossess, without the license of the owner (1). lic A judgment in ejectment upon the several demises of two plaintiffs in trespass, was held to be evidence to support the joint action of trespass against two of the defendants in the ejectment (g). In some instances, parties holding over after the determination of particular estates, are adjudged to be trespassers by the provisions of the stat. 6 Ann. c. 18, s. 5 (h). very of seisin be given of part for the whole. [See Gambling v. Prince, 2 Nott & M'Cord, 138.] (c) Crosby v. Wadsworth, 6 East, 602. If A. covenant that none but B.'s cattle shall be fed in the locus in quo, B. may maintain trespass against strangers, and may distrain A.'s cattle damagefeasant (Burt v. More, 5 T. R. 333). So, if J. S. agree with the owner of the soil to plough and sow the ground, and give him half the profits, he may have an action for treading down the corn, and the owner is not jointly concerned in the growing corn. B. N. P. 85. [See Foote v. Colvin, 3 Johns. 216.] (d) [See Clap v. Draper, 4 Mass. Rep. 266. Inhabts. of Rehoboth, &c. v. Hunt, 1 Pick. 224. Inhabts. of Worcester v. Green, 2 Pick. 425. Stultz v. Dickey, 5 Binney, 285.] 2 Roll. Ab. 549, H. p. 1. The purchaser of a growing crop of grass sold under a distress who has nailed up the gates, and made the grass into hay, may maintain trespass against the sheriff for the acts of his bailiff in entering and levying under a fi. fa. Tompkinson v. Russel, 9 Price, 287. (e) Sir John Lade v. Shepherd, Hil. 8 Geo. II. cited 1 Wils. 110. And see 1 Roll. Ab. 549, H. pl. 1; 1 Roll. Ab. 406, pl. 7. (f) Mayor of Northampton v. Ward, 1 Wils. 107. (g) Chamier v. Clingo, 5 M. & S. 64; supra, 545. (h) Which enacts, that every person, who as guardian or trustee for an infant, and every husband seised in right of his wife only, and every other person having an estate determinable upon life, who after the determination of that estate or interest, without the express consent of the person immediately entitled upon the deter (1) [Robbins v. Borman & al. 1 Pick. 122. Stackpole & al. v. Healy, 16 Mass. Rep. 33. Perley v. Chandler, 6 Mass. Rep. 454. Makepeace v. Worden & al. 1 N. Hamp. Rep. 16. Cortelyou v. Van Brundt, 2 Johns. 357. Jackson v. Hathaway, 15 Johns. 447. Peck v. Smith, 1 Conn. Rep. 103. Chambers v. Furry, 1 Yeates, 167, acc.]' |