13 Wend. 396 | N.Y. Sup. Ct. | 1835
Had the statute given the pen-ally in this case directed it “ to be recovered by action of debt,” there could have been no doubt that it would have teen competent to the pleader to have embraced in one count the cutting or carrying away of any number of trees, and to have recovered the amount of the penalties. He would, however, in such case, have been obliged to have set forth specially and accurately the facts bringing the defendant within the statute declared on. By a single count, thus framed, the defendant would be as fully apprised of the change against him, and be as well able to answer it, as if a separate count had been inserted in the declaration for each tree cut or carried away. Many trees may be cut or carried away by one act of trespass,and the form in which the penalty is given seems to be but a mode of ascertaining the amount to be recovered. I do not perceive that the defendant would have been better informed as to the subject matter of the suit, and thus enabled to make a better defence, had there been a count for each penalty ; and, besides, to require a count for each penalty, would defeat the great object of the legislature, of reducing the pleadings to the simplest form. I am not aware of any thing in the nature or form of this action impunging the declaration in this case, and it seems to be justified by the spirit of the statute. As to the right of a plaintiff, in an action of. debt, to recover a sum less in amount than that specified in the introductory or other part of the declaration, there is no Ionger any doubt, unless there be a variance in the description of a written instrument or deed. 1 Chitty’s Pl. 94, 107, 344. 2 id. 141, n. c.
•New trial denied.