26 Mo. 143 | Mo. | 1858
delivered the opinion of the court.
The only point in this case is made upon the refusal of the circuit court to treble the damages found by the jury. The petition set forth that the defendant, without leave, and wrongfully, entered Upon a certain tract of land, which is described, of which the plaintiff was owner, and cut down and destroyed timber growing on it of the value of five hundred dollars, and destroyed rails of the value of thirty dollars, and dug up and carried away clay, soil, &c., to the value of five hundred dollars. The petitioner averred that the land upon which these trespasses were committed was not the property of the defendants, and that they had no right or interest in the trees, rails, soil, Ac., which had been taken or injured by reason of these trespasses. The plaintiff concluded by stating himself entitled to damages to the amount of one thousand and thirty dollars, and for this sum he asked judgment.
The jury found a verdict for the plaintiff and assessed his damages at seven hundred dollars, that being ascertained by them to be the aggregate value of the property destroyed or used by the defendants. The plaintiff moved for a judgment for treble this amount in accordance with the statute allowing this penalty for certain trespasses described in it; but the
The act entitled “ An act to prevent certain trepasses” (R. C. 1845, p. 1069) provides that if any person shall cut down, injure or destroy trees growing on land belonging to another, or shall dig up mineral, soil, &c., or cut down and carry away grain, &c., in which trees, grain, soil, &c., he has no interest or right, and which are standing or growing on land not his own, he shall pay to the party injured treble the value of the property taken or injured. The third section of this act provides that this penalty may be recovered by an action of trespass or debt founded on this statute, or by indictment ; but when indictment is resorted to the penalties go to the county treasury.
This petition makes no allusion whatever to this statute. It describes a trespass which is within its meaning and almost within its letter, but a trespass which was still the subject of an action at common law, as well since as before the passage of the statute. Neither in the body of the petition nor in its conclusion is any reference m'ade to the statute, nor does the plaintiff any where say, directly or indirectly, that he seeks a recovery of the penalty which this statute has allowed. On the contrary, he avers that his damages amount to one thousand and thirty dollars, and for- this sum, and not for treble this sum, he asks judgment.
It is laid down in Chitty’s Pleadings (1 Chitt. Pl. p. 405) “ that where the act or omission is not an offence at common law, it is necessary in all cases to conclude against the form of the statute or statutes, or to show at least that the declaration is founded on the statute by introducing the words de plácito transgressionis et contemptus contra formam star tuti.” And this author adds that the omission of the words “ against the form of the statute or statutes,” when proper to be inserted, is fatal, even after verdict. In the various forms of proceedings on penal statutes to be found in the second volume of this writer (2 Chitt. Pl. p. 494-5) it will be seen that they not only conclude against the form of the statute,
There can be no doubt that the proceeding in this case comes within the rule stated by Chitty ; but as the suit was instituted since the adoption of our code of practice of 1849, it is urged that so much nicety is not any longer necessary or proper.
The general scope and object of this new code is certainly to do away with mere formalities, but at the same time it is very far from the purpose of this law to encourage or tolerate general, indefinite and vague allegations. The spirit of this code is to make pleadings more special than before. The plaintiff is required to state his cause of action and the relief to which he supposes himself entitled, so that the adverse party and the court may know with certainty what he complains of and what relief he wants. What is there in the complaint in this case which can authorize the inference that the plaintiff is proceeding on a statute — that he is asking for a penalty ? How could it be inferred that he has any other object than to recover the actual value of the property he has lost and any damages which the jury might choose to give him for the entry upon his close, and smart money for both if the circumstances should seem to warrant. This is the relief which he asks for in his petition. He says the actual injury which he has sustained amounts in value to one thousand and thirty dollars, and he asks a judgment for this amount, and not for three times this sum.
It is suggested that as the new code requires the plaintiff to swear to the amount of his damages, some difficulties might be thrown in the way of men of tender consciences by requiring them, when instituting suits under the statute, to swear to the treble damages. But there is no difficulty in this case. The plaintiff can state and swear to what he believes to bo the extent of his injury, and can then ask for a judgment for three times that sum by virtue of the statute.
The question in this case is not whether a judgment for
It is manifest that if this court is desired to review the action of the circuit court upon the question of probable cause and treble damages, the evidence upon which that court acted must be preserved, or the facts found either by a special verdict of the jury or by the court. The whole subject was left to the court in this case upon such evidence as had been submitted to the jury, or upon such as was subsequently submitted to the court. It would seem reasonable that the party complaining of error should show affirmatively from the record that error had been committed. Undoubtedly, where the action is founded on the statute, the burthen of showing probable cause for the trespass is on the defendant; but it is not necessary that he should set it up in his plea or answer. That evidence was given in this case with a view to this defence is apparent from the instructions. Whether the evidence make out a case within the fourth section or not we have no means of conjecturing. It was the business of the party complaining to show this. We should be acting altogether in the dark to undertake to treble the damages here.
The other judges concurring, the judgment is affirmed.