Newcomb v. Butterfield

Per Curiam. There is an insuperable objection in these [345] oases, to the plaintiff’s claim to the treble damages. The . r ... „ , r present actions were brought in pursuance or the act or the 17th February, 1810, (sess. 33. c. 5.) which author-i-zes the supervisors and assessors of the towns in Clinton 1 , county, to sue in the name of the supervisor for trespasses committed within their respective towns, upon lots set apart for the support of the gospel and schools; and the damages, when recovered, are to be applied to the use of schools and for the support of the gospel. (Laws, vol. 2. p. 225. and act, sess. 31. c. 218.) The act giving the treble damages, directs that the suits for trespasses upon lands belonging to the people of this state (and the gospel and school lots are such lands, for they have never been sold by the state) shall be brought by the overseers of the poor of the town in which such trespasses shall be committed, for the use of the poor thereof. The present •suits are not brought by the overseers of the poor, and the damages recovered are not to go to the support of the poor, but to a different object. There is no conformity to the statute, either in the party who sues, or in the destination of the fund. The case is, therefore, not within the statute giving treble damages, for that being a penal act, is to be taken strictly, and not to' be extended by equity. This is the rule even as to statutes giving costs; (3 Burr. 1287. Hullock's Law of Costs, 623.) and it applies with much more force to cases in which the actual damages are to be trebled. But though the plaintiff is not entitled in these cases to have the damages trebled, it may not be an unfit occasion to suggest the mode in which the damages under the statute are to be ascertained and trebled. It is no doubt competent for the court to treble the damages, in cases in which they are not trebled by the jury, but the jury must find the facts by which it is to be determined whether the defendant be liable to such damages. The act provides, that if, “ upon the trial,” it shall appear, by evidence, that the defendant was guilty through mistake, [346] or bad probable presumption to believe that the land on which the timber was cut was his own, the court shall give judgment for single damages only. The measure of damages, in cases coming within the act, is treble the value of the timber cut and carried away, and the facts on which the court are to treble this value- ought to appear upon the postea. The declaration should refer to the act, so that the defendant may be apprized of the ex»tent of the demand; and unless the defendant upon the trial, shall bring himself within the proviso, the jury find-him guilty of the trespass alleged, and assess the single value of the timber, and upon the return of the postea with this finding, the value is to be trebled by the court. Motion-denied. -