2 Mo. 26 | Mo. | 1828
delivered the opinion of the Court.
The plaintiff, Papin, sued Ruelle in an action of trespass before a Justice of the Peace, for cutting down, taking and carrying away certain trees from off the plaintiff’s land, &c. The plaintiff had judgment for one dollar, and the Justice gave judgment for three, under the statute allowing treble damages. Ruelle appealed to the Circuit Court, where the judgment of the Justice was reversed, and the appeal dismissed, on the ground that Papin had misconceived his action. Of this there can he no doubt. The statement, or declaration and summons, both show it; treble damages are recoverable only in an action of debt. The plaintiff’s' statement, however, is in form and substance a good declaration, in trespass generally, under the statute, Rev. Code, p. 413, sec. 1 ;■ and upon it the plaintiff might have recovered for the actual damage sustained. The case of Papin v. Montague, decided at the last term of this Court, is not distinguished in. principle from the present. The Circuit Court erred in dismissing the appeal; its judgment is, therefore reversed, and the cause remanded for a new trial conformably to this opinion.