Lowe v. Harrison

Scott, J., delivered the opinion of the Court. This was an action of trespass. The declaration contained four counts; the first two were at common law, and the last two on the statute to prohibit certain trespasses. The last count concluded against the form of the statute. On the trial, the plaintiff obtained a verdict, and the damages were trebled by the court. The question presented by the record is, whether the damages should have been trebled? It has been determined by this Court, in the case of Withington vs. Young, 4 Mo. Rep., that a plaintiff may join, in the same declaration, counts for [352] trespass at .common, law, and counts under the statute. At common law, if a declaration contained several counts, and there was a general verdict on all the counts, and entire damages assessed, if any of the counts were bad the judgment would be arrested, because it could not be ascertained but that a portion of the damages were given on the bad counts. In all declarations on a statute it is necessary to conclude against the form of the statute, although all circumstances necessary to support the action be alleged. (Chitty, 405.) If a declaration contained several counts, they are for all purposes as distinct as if they were in separate declarations, consequently they must independently contain all necessary allegations, or the latter count must expressly refer to the former. (Chitty, 450.) It will follow, then, that the allegation at the conclusion of the last count in the declaration, contra forman siaiuti, will not be regarded as relating to the other counts in the declaration. In declarations on statutes containing several counts, the precedents will show that each count concludes, contra forman siaiuti. (2 Chitty.) In this case, then, there are counts at common law, and counts on the statute, and entire damages have been assessed. The damages can only be trebled on the statutory counts. If in contemplation of law, a portion of the entire damages is assessed on each count, bow can the damages be trebled without a violation of law ? This difficulty might have been obviated if the jury had been instructed to assess damages on each count, if as many distinct offences had been proved, or if, before the trial, the plaintiff had entered a nolle prosequi as to the common law counts. In the case of George vs. Rook, 7 Mo. Rep., the only point decided was, that a verdict in an action of trespass under the statute will be deemed for single damages, and that the court should treble them. The question involved in this case has been expressly decided in Benton vs. Dale, 1 Cowen, 160, in which it was held, that, to entitle a party to treble damages, the verdict must be on a count or counts under the statute expressly, and it is not sufficient that it be upon a count on the statute, and a general count in the same declaration. Indeed, it may be questioned whether any of the counts in this declaration are upon the statute, although reference is made to it. Should not the plaintiff have employed in his declaration the words used in the act, in order to bring the offence within its terms, viz., that the defendant had no interest or right in the property taken away, and that it was on land not his own ? If these words are discarded in declarations under the statute, then the only difference between a statutory count and one at common law is, that the one concludes contra forman staluti, and the other does not. Judgment reversed, and judgment will be rendered for single damages.