Withington v. Hilderbrand

• Decision Date: 31 May 1823
• Citation: 1 Mo. 280
• Parties: WITHINGTON. v. HILDERBRAND.
• Court: Missouri Supreme Court

1 Mo. 280

WITHINGTON.

v.HILDERBRAND.

Supreme Court of Missouri.

May Term, 1823.

ERROR FROM ST. LOUIS CIRCUIT COURT.

JONES, J.

This was an action brought by the defendant in error against the plaintiff, in a plea of trespass, for killing two horses of the plaintiff's in his, the defendant's close, into which close the said horses had entered, the same not being fenced and inclosed according to law; to plaintiff's damage, $300. There was a second count, nearly to the same purpose, also laid to plaintiff's damage of $300, both laid contrary to the form of the statute. Plea, not guilty, and issue. Verdict by the jury for $160 damages. The court, by its judgment, doubled the damages assessed by the jury, and rendered judgment against the defendant for $320, with costs; to reverse which this writ of error is brought, and several errors assigned:

First. General error.

Second. Because the judgment was for double damages, when, by law, it ought to have been for single damages.

Third. That the damages recovered by the judgment exceed the amount of the damages laid in the declaration.

Fourth. Because, if the plaintiff below was entitled to double damages, the court erred in adopting a wrong rule in doubling the damages, and rendered judgment for more than double damages, as the same are considered in law.

This action, though not expressed in the declaration, must have been founded on the fourth section of the act of the 7th October, 1808, entitled an act, which gives double damages for killing, &c., any horse, &c., in an enclosure which was not fenced in the manner prescribed by that act, which is the only one on that subject. The record contains no bill of exceptions, nor did the plaintiff appear to argue his cause in this court.

The judgment below was, in our opinion, rightly given for double the damages assessed by the jury. The single damages were only to be ascertained by the jury, and these damages were, according to the statute, to be doubled, not by the jury but by the court, as was done in this case; 1 Mass. Rep. 153. The third error assigned is, in our opinion, not sustainable; the damages actually sustained by the plaintiff below was assessed by the jury, $160; for which sum only, but for the intervention of the statute, could judgment have been entered; the doubling of that assessment was in the nature of a penalty imposed by law, and which the court were to add to the verdict of the jury. Were even this objection sustainable, the judgment rendered does not amount to the damages laid in the declaration, which contains two counts, each of them to the plaintiff's damage of $300, and a general verdict to and judgment on both counts.

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