Concurring in the opinion of the supreme court, and the reasons assigned for it, I shall merely add, that, however proper the facts relied on by the plaintiffs, and the arguments deduced from them, might be in an action of ejectment to recover the possession, or on a writ of right to try She title, it is impossible that they should avail them here. It is expressly stated in the bill of exceptions, not merely as a fact set up and attempted to be proved on the trial, but as actually proved and established, that at the time the alleged trespass was committed, the defendant was “ in the actual possession" of the place in question. Now, it is settled law, and admitted by the plaintiffs’ counsel on the argument, that to maintain trespass, the plaintiffs must be in possession. The fact here is precisely the reverse.
Nor can it be allowed to the plaintiffs to get rid of the effect of this fact, by saying that the bill of exceptions was taken by the defendant, and that they had no agency in preparing it. Whether reduced to form on the trial or not, they had equally an opportunity to be heard before it was sealed; and it can make no difference which of the parties prepared it for the ap* probation of the judge. But, be that as it may, the bill contains a statement of facts for the court to pronounce upon ; and, upon those facts, the supreme court were clearly right in rc= versing the judgment of the court below.
Yates, Senator, was of the same opinion.
The defendant’s possession, according to an actual boundary, had been long, clear, and adverse. If Ins declarations are viewed as an absolute acknowledgment, that the fence, or existing line, was erroneous, and that the line of division ought to be straight, still they cannot be considered as a relinquishment of the possession, held according to the existing line. To consider what was said by the defendant as amounting to an abandonment of his possession, or to an admission that he held as the tenant of others, would be to give to his declarations an exposition quite beyond their obvious mean»
Root, Senator, was of opinion that the judgment of the supreme court ought to be reversed.
Elmendorf, Senator, was of opinion .that the judgment of. the supreme court ought to be affirmed.
said, that there was a question deserving of consideration, whether there ivas a tenancy at sufferance by the defendant: that, in his opinion, the relation of landlord and tenant never existed, at any time, between the parties; and that the judgment of the court below ought to be affirmed.
March 24th, 1814.
This being the opinion of the other members of the court, if was thereupon ordered and adjudged that the judgment of the supreme court be, in all things, affirmed, &c.
Judgment of affirmance.