#### Kennedy vs. Wheatly.

’’T'AYLOR, Judge.

This is an action of trespass, for break- "*• ing the plaintiif’s close, entering upon his lands, &c. and the defendant’s counsel relying upon the English law, insists, that an actual possession in the plaintiff at the time of the trespass committed, is necessary to be proved, to support the action. In England, all their lands are occupied, and a trespass cannot be committed but upon the possession of some one, and it must he proved who was the actual occupant, for the purpose of ascertaining the person who is entitled to the action. Here a great part of our lands are not occupied by any actual possession ; and if we were to require the same proof that is required by the English law, we should expose the unoccupied lands of every person to be trespassed upon, and the timber to be cut down and destroyed to whatever (Xtent those who were in the neighborhood thought proper, and the owner could have né remedy.