Sumner v. Cummings

The opinion of the court was delivered by Redfield, J. It seems to be admitted, in the present case, that the action, as a penal action, perished with the repeal of the statute. The plaintiff now seeks to uphold the declaration, as one in simple trespass. This we should be inclined to do, if it could be done without resorting to a degree of refinement, which would savor of puerility. We have looked into the cases cited by counsel upon this point, with a sincere desire to find some justification for upholding the action. Prescott v. Tufts, 4 Mass. 146, was trespass in two counts, one in common form, and one claiming treble damages, under a provincial statute. The defendant moved in arrest of judgment for a misjoinder ; the plaintiff struck out his count upon the statute, and took judgment upon the other, and the court held, that well enough. Pierce v. Spring, 15 Mass. 489, is cited for the same purpose. We understand this case to hold, that trespass is the proper form of action on such a statute, as is held in Prescott v. Tufts. This we have no doubt is sound law. But in this class of cases the statute only affects the damages. It does not profess to do more. But in all the cases cited at the bar, in Massachusetts and New York, upon similar statutes, it is held, that the treble damages cannot be recovered, except by counting upon 'the statute. What is the form of the verdict does not seem to us important. We know the Massachusetts practice is in those cases, when stat [433] utes give multiplied damages, even to the part)' aggrieved, to take a verdict for the single value, and enter up judgment for the penal measure of damages. It must be indifferent, as to the form of doing the thing. And so it is held in the case cited from l Gallison C. C. R. 26, Cross v. United States. But on a general verdict, it is there said, it will be intended it was for the accumulated damages given by statute. I think this is the general current of the cases, and the general course of practice in similar cases, out of Massachusetts. But in Beekman v. Chalmers, 1 Cow. 589, it was held sufficient for the jury to assess single damages. But in Livingston v. Platner, Ib. 175, it was held, the court would intend, on a general verdict, that the full damages, to which the party was entitled, were assessed. But we -do not consider this point important to the determination of the case. The present case seems to us of a different character. It seems more like an action of case upon the statute, than trespass; and if the statute had provided, that the action should be debt, we do not think there would be more difficulty in so calling this count, than in other cases, where that has been done. The action is in fact an action on the statute merely, from beginning to end. It is upon the statute and nothing else. And to now allow the count to stand, as and for a mere count in trespass, is doing violence to language, and to every purpose of the original intention of the plaintiff, or his attorney. The statute gives a new and distinct redress, for a particular offence, which redress, or remedy, was of a highly penal character, and the action is merely a proceeding to punish the defendants for an offence, and at the same time to give the plaintiff his redress, in a way and manner wholly unknown before the statute. The legislature, by repealing the statute without any saving of actions pending, have really let the action fall; and now we are asked to convert it into a simple action of trespass. We might, as well, convert it into any thing else, which it was convenient for the plaintiff now to set up. The case has been very ingeniously presented, and we have no doubt the cases cited are those, which would best subserve the purpose. But they do not seem to us to justify any such course. Ben [434] nett v. Tobias, 1 Ld. Raym. 150, only decides, that the court will, in a declaration, refer the conclusion contra forman statuti, to that portion.of the declaration, to which, in law, it is applicable, although in some sense at the expense of the more obvious grammatical relations. Regina v. Wigg, 2 Ld. Raym. 1163, only decides, that when an act is an offence at common law, and a statute superadds penalties, it is still indictable at common law, and the conclusion contra forman statuti may be rejected. That may, or may not, be law. But we should think, this plaintiff might have sued in common form, in trespass, notwithstanding the statute. But under this declaration, we think he must have made out a case within the statute, or the defendant must have recovered. Treating it as a common declaration in trespass, the stopping the logs in the river is not-material; but as an offence under the statute, it is essential. If the plaintiff had failed to make out his case under the statute, he could not have claimed a verdict for single damages, on the ground, that he had made out a case of trespass to his logs somewhere in the mountains of New Hampshire. The penal action is local; but could the plaintiff, in this case, claim to recover for some trespass committed out of the state! We think not. We think, the decision as to costs was equitable and just. And we do not understand, that the matter of costs is one, upon which courts have no discretion. We understand, in all cases, it is discretionary, to some extent, in what form, and to what extent, to tax costs. In the English courts this subject is managed far more equitably and justly than with us. Costs are only given to the party prevailing, upon such issues as he prevails upon; and upon those where he fails, he' pays costs. It ought to be so here, and we see no reason, why it should not be so. And in this case the plaintiff really prevailed, until the term, at which the motion to dismiss was-interposed. . And in all cases, where the defendant interposes a plea puis darrien continuance, and proceeds upon that alone, he only takes cost from the time of plea pleaded, — according to the English practice, and as was held in Orange county two years since, by this court. Judgment affirmed.