
    Linard and others v. Crossland.
    Proof of fin actual exclusive possession by tho plaintiff, even though it be by wrong, is sufficient to support an action of trespass (not to try title) against a mere stranger or wrongdoer.
    Where a plaintiff sues for land and obtains a writ of sequestration, and the defendant gives a replevy bond, tho latter is entitled to tho possession as against tho plaintiff until that suit is determined or tho writ or bond is quashed, and lie can maintain trespass against the plaintiff and others acting by his authority in the meantime.
    Where the defendant moved for a new trial on the ground of surprise,and made affidavit that the patent for tlie land upon which the trespass was alleged to have been committed had been filed by him among the papers of tho case, or of another specially named, but that after having annouueod himself ready for trial it was discovered that the patent could not bo found, exhibiting a chain of transfer from the patentee to himself, &c.: Held, That the motion was properly overruled.
    Appeal irom Cherokee. The appellee brought suit against tho appellants for a wilful trespass upon the enclosure and premises in the plaintiff’s possession.
    The defendants pleaded not guilty and a general denial; and further justified averring that at the time of the alleged trespass the right of property and possession of the premises was in the defendant Alfred ¿1. Linard; that he entered thereon as he lawfully might do, and that tho other defendants did the acts complained of by his request and command; and that in so doing they infringed no right of property or possession of the plaintiff.
    The plaintiff proved that he had been in possession of the premises, consisting of a house and small improvement, since 1843; that in April, 1848, the defendants, Tilomas and Alfred Linard, came to tho residence of the plaintiff with four or five white men and four or five negroes; that they felled trees across and into the plaintiff’s inclosures, accompanying the failing of the trees with hallooing aud a great noise, to the alarm of the family of the plaintiff who was from home. Some of the trees were fallen into the plaintiff’s inclosure, in which there was growing corn, and some across the cow lot, the nearest about twenty yards from the house. Several of the men had guns with them. In a conversation between the Linards and a witness respecting it, one of the former said he had had it done to run the plaintiff off, having tried other means and failed. The plaintiff offered in evidence a writ of sequestration issued in a former suit for the premises at the instance of A. M. Linard against the plaintiff, and the plaintiff’s replevy bond given thereupon; to (he admission of which the defendants objected, but the court overruled their objection. Tho court instructed the jury that if in a former suit between one of the defendants as plaintiff and the present plaintiff as defendant a writ of sequestration had been issued, and the present plaintiff’s bond taken by the sheriff in execution of the writ for tho forthcoming of the laud and place now in question, the effect of these proceedings was to entitle the plaintiff to tiie actual possession of the land and place so sequestered during the pendency of such former suit as against the present defendants.
    The jury returned a verdict for the plaintiff. The defendants moved for a new trial, and in support of their motion iiled the affidavit of the defendant A. M. Linard, in which he stated that lie was taken by surprise upon the trial in not finding a patent to the laud in question under which he held as pur-chaserand owner; that he fully believed the patent was on file in this or another case (No. 49) in the court, in which latter it liad been-liled, and where lie supposed it still remained until after his announcement for trial; that be liad diligently sought for and could not And it, and that his original counsel liad been suddenly called away from the court. The defendant in support of liis motion exhibited conveyances from the patentee of the land to himself, made in 1845, and averred that with the aid of the patent lie would have been enabled to make, out a clear right of property and possession in liimself to the premises in question. Tho court overruled the motion and gave judgment for the plaintiff, and the defendants appealed.
    The errors assigned and relied on were the admission in evidence of the writ of sequestration and replevy bond, the charge of the court as to its legal effect, and the refusal of a new trial.
    
      Jennings 8r Ochiltree, for appellants.
    Davis, Shanlcs, Bonner, and Daniel, for appellee.
   Wheeler, J.

The trespass was committed in 1848, and the plaintiff proved a prior possession, commencing as early as 1845. “Proof of an actual, exclusive possession by the plaintiff, (says Professor G-reenleaf,) even though it be by “wrong, is sufficient to support this action (trespass upon property) against a “mere stranger or wrongdoer who has neither title to the possession'himself “nor authority from the legal owner.” “The finder of goods and the prior “occupant of land or its produce lias a sufficient possession to maintain this “action against any person hut the true owner.” (2 Greenl. Ev., sec. 618.)

From the evidence in the case the defendants are to he viewed in the light of mere strangers and wrongdoers. They neither proved nor offered to prove any title or right of possession in themselves. As to them, therefore, the plaintiff’s prior actual possession was sufficient to maintain the action. It was not incumbent on him to prove that his prior possession was rightful. It will he deemed to have been so until the coutrary appears. (Davis v. Loftin, 6 Tex. R., 497.) It will devolve ou the defendants to show that the plaintiff’s was a wrongful possession. The evidence, therefore, introduced by the plaintiff to show a rightful possession in himself and objected to by the defendants was entirely superfluous and unnecessary. Ilis right to recover as against the defendants was perfect without and was in no degree dependent upon the evidence in question. Its admission, therefore, was wholly immaterial. A judgment will not be reversed for the improper admission of evidence which was merely superfluous and unnecessary to sustain the issue on the side of the party introducing; it, and on which his right was not in any measure dependent. (Id., 489, 599.)

If the defendants had produced evidence of title in themselves the evidence in quest ion would have been admissible to show that the possession of the plainim' (who was defendant in the former suit) was, as to the defendant Alfred, (I lm plaintiff in that suit) and, perhaps, also as to the other defendants, who jusfitied their trespass under him, a lawful possession during the pendency of the suit. The execution of the replevy bond gave the defendant in the former suit the right as against the plaintiff to retain his possession for the purposes of the suit until its termination, upon the principle maintained by this court in (.lio case of Fowler et al. v. Stonemn, 6 Tex. R., 60. Had this evidence become material, therefore, by the production of evidence of title by the defendants it must have been received, and the only objection which it is perceived can now he urged to its admissibility is its want of materiality. This objection, however, cannot render its admission a ground for reversing the judgment.

The instruction as to the effect of the evidence, if it liad been material, was certainly correct* as to-the defendant Alfred, and, perhaps, as to the other defendants also, for the reason before stated that they justified under him. For if the present plaintiff’s possession during the pendency of the former suit was lawful as to the plaintiff in that suit, it would be so also, it would seem, as to all persons coming* to disturb that possession by his authority. Its effect, however, was simply to maintain what was unquestionably to be taken as true under the evidence in the case, that is, that as to the defendants the plaintiff’s po-ses ¡ion was to he deemed rightful.

Tiie application for a now trial was rightly refused. The use of ordinary diligence would have enabled tlie defendants to know whether they were prepared for trial. They should not have trusted to a mere supposition or belief that evidence so vital to their defense was among papers on lile in the court, wit hone, even using* the precaution of looking for it. A new trial will not he granted for surprise on account of new evidence whenever by reasonable diligence it could have been previously obtained. (3 Story, C. C. R., 122; Watts v. Johnson, 4 Tex. R., 311, 319.) isTor ought a new trial to be granted on the ground of surprise, where the party went to trial without being prepared with his evidence, when by the use, of reasonable diligence he might either have had the benefit of his evidence at the. trial or have made its absence the ground' of continuing the cause until it conk! be procured.

If t.ho patent had really been on lile in t he court when its loss was discovered, its existence and contents might have been proved by secondary evidence, or, if such evidence was not at hand, the defendants might then have obtaiued a postponement of the trial, or a continuance if necessary, to enable them to procure (heir evidence. (Cotton v. The State, 4 Tex. R., 264.) They should not liave remained silent, taking the chances first of a verdict in their favor, and if adverse to them, then of obtaining a new trial. The application was manifestly insufficient in not showing proper diligence. The judgment is affirmed.

Judgment affirmed..  