#### STATE vs. M. D. WILLIAMS et al.

The Act of 1846, ch. 70, forbidding the removal of fences, &c., does not extend to persons in the rightful possession of the premises — as quasi tenants, occupying the same by the consent of the owner.

Hence, where A. had dower of land adjoining the land of B., and one of the lines of said dower land ran through a field, a part of which was the land of B., and which her husband, during his life, and she, after his death, with the consent of B., had cultivated; and she had the fence on BJs part removed to her own land : — Held that these circumstances were insufficient to support an indictment under the Act of 1846.

(The case of State v. Mason, 13 Ire. 341, cited and approved.)

This was an indictment under the Act of 1846, ch. 70, for the removal of the fence of one Noah Thompson, tried before his Honor Judge -Dick, at Spring Term, 1853, of Montgomery Superior Court of Law. The following is the case sent up to this Court:—

e< The fence removed was on a tract of land formerly belonging to one Atkins, adjoining the lands of one Green Smith, and which was sold some years ago by the Clerk and Master in Equity under the decree of said Court, on the petition of the heirs of said Atkins. At the sale, one Atkins, (one of the heirs at law,) became the purchaser. Before the payment of the purchase money, or obtaining a deed from the Clerk and Master, he contracted to sell a portion of the land to the said Green Smith, whose land it adjoined, and received from him the price agreed on. Atkins, not being able to pay for the land, transferred his bid to one Mebane, and, by an order of the Court, he was substituted as purchaser, for Atkins; and it was agreed between Atkins, Smith and Mebane, that Mebane should take title for the whole of the land to himself, and convey to Smith the portion which Atkins had contracted to sell to him. Mebane accordingly took the title *198from the Clerk and Master, but conveyed no part of it to Smith ; but conveyed the whole tract to Thompson by a deed covering the same — including the locus in quo. But Thompson never had any actual posession of the locus in quo, except by taking possession of the house on the tract, and cultivating other fields thereon, which were separated from the locus in quo by a piece of woods and an old field. Smith, in his lifetime, had cleared this field, which extended partly on his own original tract, and partly on the land he had contracted for with Atkins, and continued to cultivate it for seven or eight years, until his death, which took place in 1850, leaving several children and his widow, Olive Smith, him surviving; and leaving a crop of corn growing on it at his death, which his widow and family took and housed.

In the fall of 1850, Olive Smith sowed this field in wheat, and gathered the same in the summer of 1851. And after the wheat was gathered, her own horses and those of her son-in-law, the defendant, who resided with her and managed her affairs, ran in the field, and continued to do so until the fence was removed.

In February, 1851, the deed from Mebane to Thompson was made, and in the same spring dower was laid off to Mrs. Smith, of the lands of Green Smith, deceased; and the same was on that part of the land adjoining Thompson’s, and the line was run through the said field — leaving one part of the field on the Thompson side, and the other part on the widow’s dower.

In the fall of 1851, and whilst nothing was growing on the said field, the defendant Williams, with some others, by the order and direction of Mrs. Smith, removed that part of the fence which surrounded Thompson’s portion of the field, and carried it overthe line to the Smith land — agreeing among themselves not to let Thompson know it.

Upon these facts the jury, under the charge of his Honor, found the defendant guilty ; and judgment having been rendered on the verdict, the defendant appealed.”

Kelly, for the defendant, relied on the cases of Stale v. Allen, 13 Ire. 36, and State v. Mason, lb. 341.

Attorney General, for the State.

*199Nash, C. J.

The defendant is indicted under the Act of 1846, ch. 70, (Ire. Dig. Manual 158,) for removing a fence. It is admitted that if the fence in question was in the rightful possession of the defendant, or of those by whose directions he acted, he does not come within the provisions of the law. We hold that the field from which the fence was removed, was not, at .that time, in the possession of Thompson, the prosecutor, but of Olive Smith, by whose directions it was removed. The tract of land upon which the fence stood belonged at one time to one Atkins, and adjoined the lands of Green Smith. It was,'under a decree of the Court of Equity, sold, and one of the heirs purchased. He contracted to sell a portion of it, including the locus in quo, to Green Smith, and which' adjoined the land of the latter, and received a portion of the purchase money ; but no conveyance was ever executed. Subsequently Atkins, the purchaser, transferred his bid to one Mebane, who agreed to make title to Smith, but who sold the whole tract to the prosecutor, Thompson. The latter never was in the actual possession of the part of the land from which the fence was removed. Green Smith cleared a portion of the land which he had contracted for, including the field in question, and cultivated it several years, and at the time of his death, in 1850, had a crop growing on it. After his death the widow, Olive Smith, had her dower land laid off to her — one of the lines running through this field. The fence around this field included a portion of land belonging to Thompson. Mrs. Smith gathered the crop growing on the land at the time of her husband’s death. In die fall of 1850, the widow sowed the whole field in wheat, which she reaped in the summer of 1851; and her stock ran in the field up to the time the fence was removed, which was in that fall. The defendant, under the authority of Mi's. Smith, removed the rails from that portion of the field which belonged to Thompson, to that portion belonging to her. Mrs. Olive Smith was in the rightful possession of the whole field ; for though she had no written or even express parol lease for that portion of it which belonged to Thompson, yet we must presume that it was with his consent she gathered the crop-of 1851, and continued in the possession to the fall ’of that year. If she was not strictly a tenant, she was in possession lawfully. The Act of *2001846 was not intended to embrace acts of wilful waste by a tenant : if it had, it would have contained apt words to include them. State v. Mason, 13 Ire. 341. To subject a person to the penalties of the Act of 1846, he must be guilty of trespass, which Williams was not, acting as he did under Olive Smith, the rightful occupant or quasi tenant.

There was error in the opinion of the Judge below, and there must be a venire de novo.

Per Curiam. Judgment reversed, and venire de novo awarded.