Cushing v. Abner Dill.

• Decision Date: 31 December 1840
• Citation: 2 Scam. 460,3 Ill. 460,1840 WL 2969
• Parties: THOMAS H. CUSHINGv.ABNER DILL.
• Court: Illinois Supreme Court

2 Scam. 460

3 Ill. 460

1840 WL 2969 (Ill.)

THOMAS H. CUSHING

v.ABNER DILL.

Supreme Court of Illinois.

December Term, 1840.

OPINION TEXT STARTS HERE

THIS cause was originally commenced before a justice of the peace, and removed by appeal, to the Edgar circuit court, where the cause was tried at the March term, 1840, before the Hon. Justin Harlan, without a jury, and judgment rendered for the plaintiff for $64, debt and costs. The defendant appealed to this court.

CHARLES R. WELLS, for the appellant, cited 1 East 108; Saunderson v. Baker, 3 Wilson 309; 2 Roll's Abr. 555. 1 Chit. Plead. 208, 209; Bac. Abr. title Master and Servant; 8 Wend. 474.

JOSEPH G. BOWMAN, for the appellee.

WILSON, Chief Justice, delivered the opinion of the court:

In an action of debt by Dill against Cushing to recover the penalty given by the “Act to prevent trespassing, by cutting timber,” (R. L. 602; Gale's Stat. 679), the testimony proved that the trees sued for were cut upon the land of Dill; not, however, by Cushing in person, but by those employed by him to cut and hew timber; that he directed them to cut the timber on his own land, and cautioned them against cutting timber on any other person's land, and after it was hewed, it was appropriated by the persons in his employ to his use. It does not appear that he showed the workmen the lines of his land, or designated it in any other manner.

Whether, under these circumstances, the cutting of the trees in question, by the hands in Cushing's employ, was the result of his employment and directions, by reason of his not having designated his land in such a manner as to enable the workmen to distinguished it from that of another, and whether he would not therefore be liable in another form of action, upon the principle that the master is liable for the acts of his servant, done in the execution of his master's orders, are questions which do not arise, in the investigation of this case, although counsel seem to regard the settlement of these points as deciding the case. This action is brought upon a penal statute, the object of which is to punish the wrong doer, as well as to recompense the injured individual. To subject any one, therefore, to the penalty of the act, it must be shown to have been wilfully violated, by proof that the party charged, committed the forbidden act himself, or caused another to do it by his command or authority. The statute gives the penalty against the actual trespasser only; it would be a violation of legal...