#### S. S. BLACKBURN v. E. BOWMAN.

Where a person, occupying land adjoining another, and in ignorance of the true boundaries of the tracts, trespasses upon the land of the adjacent owner, but disclaims title, and tenders reasonable amends before the suit was brought*. Held, that such trespasser is protected under the Act of Assembly, Itev. Stat, 31st chapter, 83d section.

Action of Trespass, quare clausum fregit, tried before his Honor, Judge Manly, at the Spring Term, 1854, of Forsythe Superior Court.

Plea, general issue, and a special plea under the statutes, disclaiming title, alleging the trespass to be involuntary, and tender of sufficient amends.

The case presented by the evidence was, that the defendant, a short time before the trespass complained of, had become the tenant of a piece of land adjoining the plaintiff’s, and had, in ignorance of the boundary between them, not far from his, defendant’s house, cut a few sticks of pine wood, which were not taken away.

*442At another time, the defendant admitted to a witness that he had cut a board tree on another contiguous parcel of the plaintiff’s land, but stated, at the same time, that he did not know he had got over the line of the land he occupied, and reckoned the plaintiff would not care or make a fuss.

Soon after the sticks were cut for fire-wood as above stated, the plaintiff went into the field of the defendant, where he was at work, and enquired who did it. The defendant answered that he had cut them, stated the circumstances under which it was done, and offered to make any amends required; to which plaintiff answered, “ he had the advantage, and he intended to use it.” The defendant tendered two dollars to the plaintiff, before the bringing of the action, and afte rwards, at the appearance term to which the writ was returnable, paid the same into Court.

The counsel for the defendant contended that the trespasses proved were involuntary, and were against the will of the defendant, and therefore within the meaning and purview of the Statute.

To which was replied by the other side, that as to the trespass in cutting the board tree, there was no evidence that it was involuntary, and asked the Court so to charge the jury.

But his Honor declined the instructions asked, thinking there was evidence for the jury to consider, as to both the trespasses complained of, and informed them that if these trespasses were made in ignorance of the boundary by the defendant through an honest mistake of his rights, and upon being prop*erIy informed, sufficient amends were tendered and paid into Court by him.^the second plea might be found in favor of the defendant.

There was a verdict for the defendant upon the last plea.

Rule for a venire de novo; rule discharged; judgment and appeal to this Court.

Miller, for the plaintiff.

Morehead, for the defendant.

Battle, J.

The second plea of the defendant, upon which the issue was found in his favor, was given by the 83d section of *443the 31st chapter of the Revised Statutes, which is as follows: “ In all actions of quare clausum, fregit, wherein the defendant shall disclaim in his plea to make any title or claim to the lands in which the trespass is, by the declaration, supposed to be done, and the trespass be by negligence, or involuntary, and the defendant shall be permitted to plead a disclaimer, and that the trespass was by negligence or involuntary, and a tender or offer of sufficient amends for such trespass brought; whereupon, or upon some of them, the plaintiff shall be enforced to join issue, and if the said issue be found for the defendant, or the plaintiff shall be non-suited, the plaintiff shall be clearly barred from the ¡Said action, and all other suits concerning the same.”

The plaintiff’s counsel contended that the cutting by the defendant of the board tree and fire-wood on the plaintiff’s land, though done by mistake, in ignorance of the boundary line, was neither by negligence nor involuntary, within the meaning of the statu- e. In support of this position, he argues that the cutting was an act of the defendant’s will; that he intended to do what he did, not being forced to it by any inevitable necessity, and that, therefore, it was a wilful trespass, and within the letter and spirit of the statute. We do not assent to the correctness of the reasoning. It is rather a play upon words, and, if allowed to prevail, would manifestly defeat the object which the law-makers had in view. That object was to prevent a .party who had inadvertently committed a trespass upon another’s land, from being harrassed with a law suit, and burdened with costs, when he was ready to disclaim title, and make sufficient, amends. What more, in such a case, could the plaintiff reasonably desire ? He could not by a suit recover vindictive damages, and if the defendant tender him a sum sufficient tq compensate his actual loss, he could have no other purpose in refusing it, and bringing suit, than to gratify his malice. We should be sorry to be compelled to put a construction upon the statute, which would lead to such a result; Resides, in the plaintiff’s own style of reasoning, we might say, that, though the cutting the timber was voluntary, the trespass upon the plaintiff’s land *444was not so. As to that, it might very properly be called involuntary. The charge of the presiding Judge was right, and the Judgment must be affirmed.

Judgment affirmed. Per CuRiam.