Edwards v. Elijah Hill.

• Decision Date: 30 November 1849
• Citation: 1849 WL 4245,1 Peck 22,11 Ill. 22
• Parties: NINIAN W. EDWARDSv.ELIJAH HILL.
• Court: Illinois Supreme Court

11 Ill. 22
1849 WL 4245 (Ill.)
1 Peck (IL) 22

NINIAN W. EDWARDS
v.
ELIJAH HILL.

Supreme Court of Illinois.

November Term, 1849.

[11 Ill. 23]

This was an action to recover penalties for cutting timber, brought by Edwards against Hill. Heard at April term, 1848, before Joseph Gillespie, esq., presiding by consent, in place of Koerner, judge, interested in the case, and a jury. Verdict and judgment for defendant, and an appeal by the plaintiff.

G. KOERNER, for appellant.

W. H. UNDERWOOD, for appellee.

TREAT, C. J.

This was an action of debt to recover penalties for cutting timber. The declaration alleged that the plaintiff was seized in fee of the land on which the trees were cut. The plea was nil debet. The evidence showed that the plaintiff had title to but six-sevenths of the land. On this state of case, the court instructed the jury that the plaintiff could not recover. The propriety of that instruction is the only question in the case. The statute gives the owner a certain penalty for each tree of a particular description cut on his land, without his permission, and authorizes him to recover the penalty in an action of debt. R. S. 525. Under this statute it has been decided that the party claiming to recover the penalty, as owner, must aver in his declaration, and prove on the trial, that he is the owner, in fee simple, of the land on which the trespass was committed. Wright v. Bennett, 3 Scam., 258; Mason v. Park, do., 532; Whiteside v. Divers, 4 Scam., 336; Jarrot v. Vaughn, 2 Gilman, 132; Clay v. Boyer, 5 Gilman, 506.

It is insisted that the rules governing actions in form ex delicto, are strictly applicable to this proceeding. It seems to be well settled that, in actions for torts, the non joinder of persons interested with the plaintiff must be pleaded in abatement, and can not be taken advantage of on the trial, otherwise than in mitigation of damages. If the defendant omits to plead the non joinder in abatement, he, thereby, consents to a severance of the cause of action, and the plaintiff may have judgment for his

[11 Ill. 24]

aliquot share of the...