Ellis v. Whitlock
| Decision Date | 31 July 1847 |
| Citation | 10 Mo. 781 |
| Parties | ELLIS v. WHITLOCK. |
| Court | Missouri Supreme Court |
ERROR TO CLINTON CIRCUIT COURT.
LEONARD, for Plaintiff, insists: That the debt lies for the penalty given in the first section of the act concerning Trespasses. Statute 1845; Commonwealth v. Loring, 8 Pick. 370; Ex-parte Brown, 21 Wend. 316.
HICKMAN & WELLS, for Defendant.
This was an action of debt, commenced in January, 1847, by the plaintiff in error against the defendant in error, under the first section of the act entitled “An act to prevent certain Trespasses,” approved 10th February, 1845. There was a demurrer to the declaration, which being sustained, the plaintiff sued out a writ of error.
The first section of the above recited act gives treble damages for injuries to trees or for injuring or carrying away stones, ore, gravel, &c., or for cutting down or carrying away grass, grain, &c., or for breaking glass in a house. The second section of the said act imposes a penalty of $5, and double the amount of damages a party may sustain in consequence of another's voluntarily throwing down or opening any doors, bars, gates, &c. The third section of the act prescribes that all penalties contained in the preceding section may be recovered by action of trespass or debt founded on this statute by indictment.
The objection of the defendant to the declaration is, that it is in debt, and not in trespass. That in the third section of the act using the words ““preceding section,” the remedies given by it are only intended for the recovery of the penalty contained in the second section, and do not extend to those contained in the first section, but that the party is left to the remedy at common law for them.
The first legislation on this subject was by the act of 30th of January, 1817, entitlied “An act for the prevention of certain trespasses.” By that act, the trespasses enumerated in the first and second sections of the act of 1845 were all embraced in one section, and the action of debt was given for their recovery. In the Revision of 1825, this act was preserved in the form in which it was originally enacted. The plan adopted in the Revision of 1835 was to subdivide sections when they embraced several subjects; and under that system, what had been previously contained in the first section of this act was spread out into two in the manner it stands under the law now in force, which has been shown above. The third section of the act of 1835, which is, as has been observed, in the form the law at present assumes, and under which this action was brought, expressly refers to the preceding section, and gives the action of debt as well for the trespasses enumerated in the first as in the second section. This summary of the history of the revision of the statute under consideration is sufficient...
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Sluder v. St. Louis Transit Co.
...would subject the sheriff to a liability which we cannot reasonably suppose he ever intended to incur." This rule was followed in Ellis v. Whitlock, 10 Mo. 781; State v. Canton, 43 Mo. 51; Moore v. White, 45 Mo. 206; Parish v. Railroad, 63 Mo., loc. cit. 286; Railroad v. Railroad, 149 Mo., ......
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State v. Stobie
...of 1845 contained the same provisions in this regard as the revision of 1835. The law as it then stood came before this court in Ellis v. Whitlock, 10 Mo. 781. That was an action of debt. It was objected that trespass and not debt was the proper remedy. The lower court sustained a demurrer ......
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...can be synonymous with 'Section'. Lehmann v. Revell, 354 Ill. 262, 188 N.E. 531; that 'Section' may sometimes mean 'Sections', Ellis v. Whitlock, 10 Mo. 781, and at other times a subdivision of a section, Spring v. Collector of City of Olney, 78 Ill. 101; State ex rel. Ekern v. Zimmerman, 1......
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The State ex rel. McNamee v. Stobie
...of 1845 contained the same provisions in this regard as the revision of 1835. The law as it then stood came before this court in Ellis v. Whitlock, 10 Mo. 781. That was an action debt. It was objected that trespass and not debt was the proper remedy. The lower court sustained a demurrer to ......