the throne to a particular sovereign and his family. As they relate to the persons, they expire of course on the death of the sovereign or the extinction of his family.

Real treaties relate solely to the subjectmatters of the convention, independently of the persons of the contracting parties, and continue to bind the state although there may be changes in its constitution or in the persons of its rulers. Vattel, Law of Nat. b. 2, c. 12, §§ 183-197; Boyd's Wheat. Int. Law, $ 29.

On the part of the United States, treaties are made by the president, by and with the consent of the senate, provided two-thirds of the senators present concur. Const. art. 2,

s. 2, n. 2.

No state shall enter into any treaty, alliance, or confederation; Const. art. 1, s. 10, n. 1; nor shall any state, without the consent of congress, enter into any agreement or compact with another state or with a foreign power; id. art. 1, sec. 10, n. 2; 3 Story, Const. § 1395.

A treaty is declared to be the supreme law of the land, and is, therefore, obligatory on courts; 1 Cra. 103; 1 Wash. C. C. 322; Paine, 55; whenever it operates of itself without the aid of a legislative provision; but when the terms of the stipulation import a contract, and either of the parties engages to perform a particular act, the treaty addresses itself to the political, not to the judicial, department, and the legislature must execute the contract before it can become a rule of the court; 2 Pet. 314. It need hardly be said that a treaty cannot change the constitution or be held valid if it be in violation of that instrument. The effect of treaties and acts of congress, when in conflict, is not settled by the constitution. But the question is not involved in any doubt as to its solution. A treaty may supersede a prior act of congress, and an act of congress may supersede a prior treaty; and this is true both of treaties with Indians and foreign nations; per Swayne, J., in 11 Wall. 620; so in 8 Op. Atty.-Gen. 354. A treaty changes the preexisting laws, and must be so regarded by the courts; 1 Cra. 37; 6 Op. Atty.-Gen. 291.

As affecting the rights of contracting governments, a treaty is binding from the date of its signature, and the exchange of signatures has a retroactive effect, confirming the treaty from its date; but a different rule prevails when the treaty operates on individual rights; 9 Wall. 32.

The law of the interpretation of treaties is substantially the same as in the case of other contracts; Woolsey, Int. Law, 185.

See Story, Const.; Sergeant, Const. Law; 4 Hall, L. J. 461; Wheat. 161; 3 Dall. 199; 1 Kent, *165, *284; see 3 Law Mag. & Rev., 4 series, 91 (On the Obligation of Treaties).

TREATY OF PEACE. A treaty of peace is an agreement or contract made by belligerent powers, in which they agree to

lay down their arms, and by which they stipulate the conditions of peace and regulate the manner in which it is to be restored and supported. Vattel, b. 4, c. 2, § 9.

TREBLE COSTS. In English Practice. The taxed costs and three-fourths the same added thereto. It is computed by adding one-half for double costs, and in addition one-half of one-half for treble costs. 1 Chitty, Bail, 137; 1 Chitty, Pr. 27.

In American Law. In Pennsylvania the rule is different: when an act of assembly gives treble costs, the party is allowed three times the usual costs, with the exception that the fees of the officers are not to be trebled when they are not regularly or usually payable by the defendant; 2 Rawle, 201.

And in New York the directions of the statute are to be strictly pursued, and the costs are to be trebled; 2 Dunl. Pr. 731.

TREBLE DAMAGES. In actions aris

ing ex contractu, some statutes give treble damages; and these statutes have been liberally construed to mean actually treble damages: for example, if the jury give twenty will award forty dollars more, so as to make dollars damages for a forcible entry, the court B. & C. 154; M'Clel. 567. See PATENT. the total amount of damages sixty dollars; 4

The construction on the words treble dam

ages is different from that which has been put 288; 1 Browne, Penn. 9; 1 Cow. 160, 175,

584; 8 id. 115.

TREBUCKET. The name of an engine of punishment, said to be synonymous with tumbrel.

TREE. A woody plant, which in respect of thickness and height grows greater than any other plant.

Trees are part of the real estate while growing and before they are severed from the freehold; but as soon as they are cut down they are personal property.

Some trees are timber-trees, while others do not bear that denomination. See TIMBER; 2 Bla. Com. 281.

Trees belong to the owner of the land where they grow; but if the roots go out of one man's land into that of another, or the branches spread over the adjoining estates, such roots or branches may be cut off by the owner of the land into which they thus grow; Rolle, 394; 3 Bulstr. 198; Viner, Abr. Trees (E), Nuisance (W 2); 1 Suppl. to Ves. Jr. 138; 2 Suppl. Ves. Ch. 162, 448; 6 Ves. Ch. 109.

When the roots grow into the adjoining land, the owner of such land may lawfully claim a right to hold the tree in common with the owner of the land where it was planted; but if the branches only overshadow the adjoining land, and the roots do not enter it, the tree wholly belows to the owner of the estate where the roots grow; 1 Ld. Raym. 737. See 1 Pick. 224; 6 N. H. 430; 7 Conn. 125; 11 Co. 50; Hob. 310; 2 Rolle, 141; 5 B. & Ald. 600; Washb. Easem.;

TRESAILE

Code Civ. art. 671; Pardessus, Tr. des Servitudes, 297; Dalloz, Dict. Servitudes, art. 3, § 8; F. Moore, 812; Plowd. 470; 5 B. & C. 897. When the tree grows directly on the boundary-line, so that the line passes through it, it is the property of both owners, whether it be marked as a boundary or not; 12 N. H.

454.

TRESAILE, or TRESAYLE. The grandfather's grandfather. 1 Bla. Com. 186. TRESPASS. Any misfeasance or act of one man whereby another is injuriously treated or damnified. 3 Bla. Com. 208; 7 Conn.

125.

Any unlawful act committed with violence, actual or implied, to the person, property, or rights of another.

Any unauthorized entry upon the realty of another to the damage thereof.

Jac. 362; of which another is the owner and in possession; 2 Root, 209; 5 Vt. 97; and for the removal or injury of inanimate personal property; 12 Me. 122; 13 Pick. 139; 5 Johns. 348; of which another has the possession, actual or constructive; 21 Pick. 369; 13 Johns. 141; 1 N. H. 110; 4 J. J. Marsh. 18; 2 Bail. So. C. 466; 4 Munf. 444; 6 Blackf. 136; 4 Ill. 9; 6 W. & S. 323; without the owner's assent. A naked possession or right to immediate possession is sufficient to support this action; i Term, 480; 7 Johns. 535; 5 Vt. 274; 1 Penn. 238; 17 S. & R. 251; 11 Mass. 70; 11 Vt. 521; 1 Ired. 163; 10 Vt. 165. See TRESPASSER.

The action lies also for injuries to the realty consequent upon entering without right upon another man's land (breaking his close). The inclosure may be purely imaginary; 3 Bla. Com. 209; 1 D. & B. 371; but reaches to the sky and to the centre of the earth; 19 Johns. 381.

The word is used oftener in the last two somewhat restricted significations than in the first sense here given. In determining the nature of The plaintiff must be in possession with the act, neither the amount of violence or the intent with which it is offered, nor the extent of & M'C. 356; 10 Conn. 225; 6 Rand. 8, 556; East, 485; 9 Johns. 61; 1 N. some title; the damage accomplished or the purpose for which the act was committed, are of any impor- 4 Watts, 377; 4 Pick. 305; 4 Bibb, 218; 2 tance since a person who enters upon the land Hill, So. C. 466; 1 Harr. & J. Md. 295; 31 of another without leave, to lead off his own Penn. 304; 5 Harr. Del. 320; 11 Ired. 417; runaway horse, and who breaks a blade of grass though mere title is sufficient where no one is in so doing, commits a trespass; 2 Humphr. in possession; 2 Ala. 229; 1 Wend. 466; 1 325; 6 Johns. 5. It is said that some damage must be committed Vt. 485; 8 Pick. 333; 4 D. & B. 68; as in to make an act a trespass. It is undoubtedly case of an owner to the centre of a highway; true that damage is required to constitute a tres- 4 N. H. 36; 1 Penn. 336; see 17 Pick. 357; pass for which an action will lie; but, so far as and mere possession is sufficient against a the tort itself is concerned, it seems more than wrong-doer; 9 Ala. 82; 1 Rice, 368; 23 Ga. doubtful if the mere commission of an act affect-590; see 22 Pick. 295; and the possession ing another, without legal authority, does not constitute trespass, though until damage is done may be by an agent; 3 M'Cord, 422; but the law will not regard it, inasmuch as the law not by a tenant; 8 Pick. 235; 1 Hill, So. C. does not regard trifles. 260; see 13 Ind. 64; other than a tenant at will; 15 Pick. 102.

The distinction between the different classes of trespass is of importance in determining the nature of the remedy.

A trespass committed with force is said to be done vi et armis; one committed by entry upon the realty, by breaking the close.

In Practice. A form of action which lies to recover damages for the injury sustained by the plaintiff, as the immediate consequence of some wrong done forcibly to his person or property, against the person committing the same.

The action lies for injuries to the person of the plaintiff as, by assault and battery, wounding, imprisonment, and the like; 9 Vt. 352; 6 Blackf. 375.

It lies, also, for forcible injuries to the person of another, whereby a direct injury is done to the plaintiff in regard to his rights as parent, master, etc.; 2 Aik. 465; 2 Caines, 292; 8 S. & R. 36. It does not lie for mere non-feasance, nor where the matter affected was not tangible.

An action will not lie unless some damage is committed; but slight damage only is required; 2 Johns. 357; 4 Mass: 266.

Some damage must have been done to sustain the action; 2 Bay, 421; though it may have been very slight: as, breaking glass; 4 Mass. 140.

The action will not lie where the defendant has a justification sufficient to excuse the act committed, though he acted without authority from the owner or the person affected; 8 Law Rep. 77. See JUSTIFICATION; TRESPASSER. Accident may in some cases excuse a trespass; 7 Vt. 62; 4 M'Cord, 61; 12 Me. 67.

The declaration must contain a concise statement of the injury complained of, whether to the person, personal or real property, and it must allege that the injury was committed vi et armis and contra pacem. See CONTINUANDO.

The plea of not guilty raises the general issue, and under it the defendant may give in The action lies for injuries to personal pro- evidence any facts which show that the property, which may be committed by the seve-perty was not in possession of the plaintiff ral acts of unlawfully striking, chasing if alive, and carrying away to the damage of the plaintiff, a personal chattel; 1 Wms. Saund. 84, nn. 2, 3; Fitzh. N. B. 86; Cro.

rightfully as against the defendant at the time of the injury, or that the injury was not committed by the defendant with force.

Other matters must, in general, be pleaded

TRESPASSER AB INITIO

749

TRIAL

TRESPASSER AB INITIO. A term

ity given him, and then becomes a trespasser cide it,-who are properly called in to inform by subsequent acts, he is held to be a tres- the conscience of the court in respect of passer ab initio (from the beginning); q. v. dubious facts; and, therefore, when the fact A person may be a trespasser by ordering from its nature must be evident in the court such an act done as makes the doer a tres- either from ocular demonstration or other passer; 14 Johns. 406; 16 Ov. 13; 10 Pick. irrefragable proof, there the law departs from 543; or by subsequently assenting, in some its usual resort, the verdict of twelve men, cases; 1 Rawle, 121; 1 B. Monr. 96; or and relies on its judgment alone. For exassisting, though not present; 2 Litt. 240. ample, if a defendant pleads in abatement of the suit that the plaintiff is dead, and one the defendant denies, in this case the judges appears and calls himself the plaintiff, which shall determine by inspection and examination whether he be plaintiff or not; 9 Co. 30; 3 Bla. Com. 331; Steph. Pl. 123. eide facts upon mere inspection. The most Judges of courts of equity frequently dethe plaintiff prays an injunction on an allefamiliar examples are those of cases where gation of piracy or infringement of a patent or copyright; 5 Ves. Ch. 709; and the cases there cited. And see 2 Atk. 141; 2 B. & C. 80; 4 Ves. 681; 2 Russ. Ch. 385; 1 Ves. & B. 67; Cro. Jac. 230; 1 Dall. 166.

applied to denote that one who has commenced a lawful act in a proper manner, has performed some unlawful act, or some lawful act in an unlawful manner, so connected with the previous act that he is to be regarded as having acted unlawfully from the beginning; See 6 Carpenters' Case, 8 Co. 146; s. c. 1 Sm. L. C. *216; 5 Taunt. 198; 7 Ad. & E.

176; 11 M. & W. 740; 15 Johns. 401. See AB INITIO.

TRET. An allowance made for the water or dust that may be mixed with any commodity. It differs from tare, q. v.

TRIAL. In Practice. The examination

before a competent tribunal, according to the laws of the land, of the facts put in issue in a cause, for the purpose of determining such issue. 4 Mas. 232.

"Trial," as used in the acts of congress of July 27, 1866, and March 2, 1867, appropriately designates a trial by the jury of an issue which will determine the facts in an action at law; and "final hearing," in contradistinction to hearings upon interlocutory matters, the hearing of a cause upon its merits by a judge sitting in equity; 112 Mass. 343; 19 Wall. 214.

Trial by certificate is a mode of trial allowed by the English law in those cases where the evidence of the person certifying is the only proper criterion of the point in dispute. For, when the fact in question lies out of the cognizance of the court, the judges must rely on the solemn averments or information of persons in such station as affords them the most clear and complete knowledge of the truth.

As, therefore, such evidence, if given to a jury, must always be conclusive, the law, to save trouble and circuity, permits the fact to be determined upon such certificate merely; 3 Bla. Com. 333; Steph. Pl. 122.

Trial by grand assize is a peculiar mode of trial allowed in writs of right. See AssIZE; GRAND ASSIZE.

Trial by inspection or examination is a form of trial in which the judges of the court, upon the testimony of their own senses, decide the point in dispute.

This trial takes place when, for the greater expedition of a cause, in some point or issue being either the principal question or arising collaterally out of it, being evidently the object of sense, the judges of the court, upon the testimony of their own senses, shall decide the point in dispute. For where the affirmative or negative of a question is matter of such obvious determination, it is not thought necessary to summon a jury to de

Trial by jury is that form of trial in which the facts are determined by twelve men impartially selected from the body of the county.

See JURY.

To insure fairness, this mode of trial must be in public: the parties to the suit, or, in a criminal trial, the prisoner, must be present; but the continuance of the trial and the taking of testimony during the brief absence of the prisoner from the court-room on business connected with the trial, has been held not to be error; 25 Alb. L. J. 303; 43 N. Y. 1. See PRESENCE. Prisoners may be manacled during the trial, at the discretion of the court; 1 So. Law Jour. 348; although it has been rarely done in modern times; and any reasonable means may be taken to insure the safety of the prisoner; but his counsel must be allowed free access, to him at the trial. See 15 Am. L. Rev. 809. The trial is conducted by selecting a jury in the manner prescribed by the local statutes, who must be sworn to try the matter in dispute according to law and the evidence. Evidence is then given by the party on whom rests the onus probandi or burden of the proof: as the witnesses are called by a party they are questioned by him, and after they have been examined, which is called an examination in chief, they are subject to a cross-examination by the other party as to every part of their testimony. Having examined all his witnesses, the party who supports the affirmative of the issue closes; and the other party then calls his witnesses to explain his case or support his part of the issue; these are in the same manner liable to. a cross-examination.

In case the parties should differ as to what is to be given in evidence, the judge must decide the matter, and his decision is conclusive upon the parties so far as regards the trial; but bills of exceptions may be taken; see BILL OF EXCEPTIONS; Wells, Law & F.; motion in arrest of judgment made, or