State v. . Jacob Hanks

Hoyden, J. His Honor was mistaken in supposing that the act of 1865-’66 was intended to cover such a case as' this. The act is entitled “an act to prevent wilful tresspasses on lands, and stealing any kind of property therefrom it was manifestly its object to keep off interlopers, and to subject them to indictment, if they invaded the possession after they had been forbidden. The defendants in this case supposed that they were en *614 gaged in the performance of a duty imposed upon them by law, they had no purpose or intent of doing any wrong to the prosecutor. The defendant, Hanks, having made an entry and having procured a warrant of survey, and having employed the county surveyor who had summoned and sworn the defendant Durham as a chain-carrier, were all in the act of making a survey of the entry when they passed through a small piece of inclosed ground, which had been cleared and cultivated by the son of the prosecutor, who was present, and by the directions of his father, forbid the entry, and the case states they had before been forbidden, but that could make no difference. In the case of the State v. McCauless, 9 Ired., 375, the present Chief Justice says the “gist of the offence of forcible trespass is a high-handed invasion of the actual possession of another, he being present; the title is not drawn in question.” With what propriety could the action of the defendants be denominated a high-handed invasion of the actual possession of the prosecutor. It would seem to be a complete perversion of language thus to designate the conduct of the defendants. Doubtless the defendants honestly believed that the warrant of survey gave them a license to enter the land of the prosecutor, if it became necessary to do so, in surveying the entry. It may be that m this they were mistaken, and that if the field through which they passed was not vacant land, but really was the land of the prosecutor, the defendants subjected themselves to a civil action, but not to an indictment for a forcible trespass. There is error. This will be certified. Pbk Curiam. Error*.