Elder v. Hilzheim

Handy, J., delivered the opinion of the court. This action was brought, in January, 1858, by the plaintiff in error, in the Circuit Court of Madison county, to recover of the defendants, damages for cutting down a quantity of trees upon the land of the plaintiff, lying in that county, the defendants residing in Hinds county. The declaration contained two counts, both claiming that the plaintiff was seised and possessed of the lands upon which the injury was committed, — the first charging that the defendants cut down, carried away, or destroyed sixty-seven pine trees, without the plaintiff’s consent, and claiming the sum of ten dollars for each of said trees, according to the statute, amounting to the sum of six hundred and seventy dollars; the second containing the same allegations, and seeking to recover the actual value of the trees, which is alleged to be $670. At the return term, the defendants appeared, and moved the court to dismiss the suit, for want of jurisdiction, because they were not residents of the county where it was brought, nor found therein,’— which facts were admitted by the plaintiff. This motion was overruled; and the defendants then demurred to the declaration, on [243] the ground of misjoinder of counts in it; and the demurrer was sustained, and judgment rendered for the defendants. The plaintiff, thereupon, sued out his writ of error, and brings the case here. It is now insisted, that the two counts in the declaration were properly joined, and that the demurrer should not have been overruled. The only material difference between the two counts is, that the first seeks to recover the statute value annexed to the trees, as a forfeiture for cutting down, carrying away, or destroying them; and the second seeks to recover the real value of the trees cut down and taken away. In both, the cutting down and taking away of the trees is the grievance complained of. The first concludes: “Whereby the defendants have forfeited and become liable to'pay to the plaintiff the sum of ten dollars for each of said trees, &c., according to the statute,” &c.; and the other concludes: “That said trees were worth $670, and the same has not been paid to the plaintiff; and the relief demanded, under this count, is judgment for $670,” &c. These counts appear to be good inform, as counts in debt, to recover the respective values of the trees, according to the rule relied on in each. The plea of nil debet would have been appropriate to both, and the same judgment would have been proper as to either of them. The objection, on the ground of misjoinder, was, therefore, not tenable, and the demurrer should have been overruled. But the question thus arises, whether the motion to dismiss the suit, made by the defendants, on the ground of their not being residents of the county where the suit was brought, nor found therein, should not have been sustained; and whether, looking to the whole record, the judgment was not correct ? The action of ejectment, and the action of trespass quare clausum fregit, are the only actions which may be brought in the county where the defendant does not reside and is not found. It is insisted, in behalf of the plaintiff, that this is an action quare clausum fregit; and, it appears, that the second count was so regarded in the court below. We have, however, above seen, that both counts are of the same nature, and are to be regarded, in form, as counts in debt. But if they be considered as counts of quare clausum fregit, it is clear that such an action cannot be maintained under [244] the statute. Blackburn v. Baker, 7 Porter, 284. This decision is made upon a statute the same in terms as our statute; and, we think, upon correct grounds. If the first is in debt, and the second in quare clausum fregit, the objection, on the ground of misjoinder, would prevail. And, if they are both in debt, as we think they must be regarded, the court had not jurisdiction; and, the motion to dismiss, should have been sustained. Upon the whole record, the judgment is correct, and is affirmed. •