Tait v. Thomas

Gileillan, C. J. There are two ways in which the amoxmt to be recovered, under the statute allowing treble damages for certain trespasses, (Gen. St. ch. 75, § 28,) may be ascertained: first, the coxxrt may instruct the jury to assess the actual damage, and render their verdict for treble [538] that amount; second, it may instruct the jury to return the-single damage, and the fact whether the trespass was wilful or involuntary; and the court may then treble the damage-so found. The facts upon which the question of treble damages depends must be passed upon by the jury, and not by the court. In this case it does not appear what instructions were given to the jury. Their verdict was general, and, the contrary not appearing, it is to be presumed that, after ascertaining the character of the trespass, they have allowed the damages to which the plaintiffs are by law entitled. Livingston v. Platner, 1 Cow. 175. Judgment affirmed.