(dissenting): I am unable to concur in the opinion of the Court. It is not pretended that the defendant was the owner of the land, and whether he was a bona fide claimant was a question for the jury. I think his Honor properly admitted the evidence as to Plemphiirs title only as competent to show the bona fides of thé defendant, and excluded it for the purpose of trying, in this criminal action, the question of title between the prosecutrix and Hemphill. If the defendant was acting bona fide, it was sufficient for him to admit it for the purpose of showing this fact. Good faith to his landlord would not permit him to conspire with an adverse claimant of the land to enable that claimant to try indirectly the title in a criminal prosecution. If he was acting in good faith, it made no difference whether Hemp-hill was the owner or not, he could not be convicted under the statute; and so, if he was not acting in good faith, but collusively with an adverse claimant of the land, not in possession, that would not, in my opinion, protect him against *753the prosecution of the claimant in possession, and it is not denied that the possession was in the prosecutrix. The fact that the defendant was unwilling to rest his defence upon the bona fides of his claim, but sought to establish Hemp-hill’s title, was a circumstance that justified the jury in finding that he was not acting bona fide. I am unable to see what possible service tbe deed to Hemphill could be to the defendant, except to show the bona fides of his claim, and for this purpose his Honor admitted it, but the defendant was not satisfied with that. However willing he seems to have been to act collusively with Hemphill against his landlord, it is perhaps to his credit that he was not willing to go so far as to perjure himself by swearing that he was a bona fide claimant. If it be said that there is no evidence of fraud and collusion, I answer: the facts seem to me to warrant the conclusion of fraud, and the jury were very evidently of that opinion, or they would, under the charge of his Honor, have rendered a verdict of not guilty.