50 Ill. 48 | Ill. | 1869
delivered the opinion of the Court:
This was an action qui tam, brought to recover seventy different penalties for a failure of the railway company to comply with the statute requiring a bell to be rung, or a whistle to be sounded, at the crossings. The jury found for the plaintiff on sixty-eight counts, and rendered a verdict for thirty-four hundred dollars. The court gave judgment, “ that the plaintiff have and recover of and from the said defendant, the sum of thirty-four hundred dollars, his debt so assessed, as aforesaid, and that he have execution therefor.” This judgment is defective. It should have been for a recovery of the money, one-half to the use of the plaintiff, and one-half to he paid to the State, and should have directed an execution to issue in that form. If the sheriff were to collect the money under an execution issued upon this judgment as it now stands, he would be required to pay it all to the plaintiff, or at least be justified in so doing. Bradley v. Baldwin, 5 Conn. 288.
There must, however, be a new trial, for the reason that the verdict was for too large a sum. The record shows only sixty-seven violations of the statute, which would justify a verdict only for thirty-three hundred and fifty dollars. As to two trains passing on the 6th of April, the record shows, as to one, merely a failure to blow the whistle, and as to the other merely a failure to ring the bell. This proof was insufficient, and yet the jury must have included in its verdict a penalty in reference to one of these trains. There must be a new trial.
Judgment reversed.
