Lowe v. Harrison

• Decision Date: 31 January 1844
• Citation: 8 Mo. 350
• Parties: LOWE & FORSYTHE v. HARRISON.
• Court: Missouri Supreme Court

8 Mo. 350

LOWE & FORSYTHE

v.HARRISON.

Supreme Court of Missouri.

January Term, 1844.

ERROR TO COOPER CIRCUIT COURT.

ADAMS, for Plaintiffs. 1. The verdict in this cause applies as well to the law counts as to the counts under the statute, and it is only where the trespass is founded upon the statute that treble damages can be given. 2. That the judgment must correspond with the verdict, and the court cannot, in this case, apply the verdict to the statutory counts; the rule being, that a general verdict applies to the whole declaration, so that at common law, where some of the counts were bad and a general verdict was found, the court would arrest the judgment, because the court could not know upon what counts the jury found. 1 Chitty's Pl. 448; 2 Saund. 171, B; 1 Term R. 151; Trevor v. Wall, 3 Term R. 435; 5 Johns. R. 476. 3. In this case the party had a right to join the common law counts with counts under the statute, but he certainly has no right to treble damages on the common law counts, and the verdict being general, the court cannot confine it to the statutory counts. 4 Mo. R. 564. 4. Suits for trespasses under the statute ought to be brought in the name of the county where the trespass is committed. See Laws of Mo. 1839, p. 173, title Trespass.

STUART and MILLER, for Defendant. 1. The court below very properly overruled the motions in arrest, and for a new trial. The declaration in this case is brought under the statute, and though there be several counts in a declaration, and reference is made to the statutes, it is sufficient if the declaration state facts which will appear to the court to be affected by the statute, See 1 Chitty, 246 and 404. 2. Public statutes, and the facts which they state or recite, must be noticed by the court, without their being stated in the pleading. 3. The conclusion of the declaration shows it to be a suit under the statute, and was so recognized by defendants when they filed their notice of special matter to be given in evidence. See Digest of Mo., 612; George v. Rook, 7 Mo. R. 149. 4. By reference to the record in the case of George v. Rook, it will be found, that the declaration contained two counts, and no reference is made in either count to the statute except in the conclusion, and there the trespass is alleged to be “contrary to the form of the statute,” and in that case the Supreme Court trebled the damages. 5. If, by the declaration, reference is made to the statute, so as to show that the party sues under the statute, or the acts of trespasses fall within the statute, it is sufficient. See 5 Cowen, 685; 6 Cowen, 295.

SCOTT, J.

This was an action of trespass. The declaration contained four counts; the first two were at common law, and the last two on the statute to prohibit certain trespasses. The last count concluded against the form of the statute. On the trial, the plaintiff obtained a verdict, and the damages were trebled by the court. The question presented by the record is, whether the damages should have been trebled? It has been determined by this court, in the case of Withington v. Young, 4 Mo. R. 564, that a plaintiff may join, in the same declaration, counts for trespass at common law, and counts under the statute. At common law, if a declaration contained several counts, and there was a general verdict on all the counts, and entire damages assessed, if any of the counts were bad the judgment would be arrested, because it could not be ascertained but that a portion of the damages was given on the bad counts. In all...