Withington v. Young

• Decision Date: 30 June 1837
• Citation: 4 Mo. 564
• Parties: WITHINGTON v. YOUNG.
• Court: Missouri Supreme Court

4 Mo. 564

WITHINGTON

v.YOUNG.

Supreme Court of Missouri.

June Term, 1837.

MULLANPHY, for Plaintiff in Error. 1st. That the statutory trespasses and common law trespasses, cannot be joined--the judgment being entirely different. 2nd. That the statutory judgment of fine and double damages is erroneous in this case, as neither count of the two is on the statute. 3rd. That if one of the counts is on the statute, it is double, that is, comprehends several offenses, as in one count. 4th. That the admission of evidence to the state of feeling of the parties prior to the trespass, was not authorized by law. 5th. The plaintiff in error is found not guilty on one count and still all costs are given against him.

MCGIRK, J.

Sarah Young, in 1834, brought an action of trespass, founded on a statute of the State, passed 22nd December, 1824, entitled an act for the prevention of certain trespasses. The first count states, that theretofore, the plaintiff was possessed of a certain close, as of fee; and that on the same land she had fences and enclosures, and that Withington broke and voluntarily entered the same, and threw down the fences, and left the same down; and that beasts entered and destroyed her grain, grass, &c., against the form of the statute. A second count in trespass, for breaking and entering the plaintiff's close, spoiling grass, &c., was contained in the declaration. The defendant pleaded not guilty to the whole declaration. The defendant also to the first count, pleaded that the land, &c., on which the fences stood was his own land, &c., and then puts in a third plea to the same effect. His fourth plea asserts in him a freehold to the land, in the declaration mentioned. The fourth plea was adjudged bad on demurrer. Replications were put in to those pleas, and issues thereon joined. Several other proceedings were had. The cause was tried by a jury, and the plaintiff had a verdict on the first count, and on the first plea, and the jury assessed the plaintiff's damage to $13. The jury found against the defendant as to the pleas of liberum tenementum, and for the defendant on the second count. The defendant moved the court for a new trial, 1st. Because the verdict is against law. 2nd. The verdict is against evidence. 3rd. The court permitted incompetent evidence to go to the jury. 4th. Because the court overruled the objection of the defendant to testimony as to the state of feeling between the parties, at and before the trial. 5th. Because the jury did not find on all the issues submitted to them. 6th. Because the jury did not find the issue of liberum tenementum--which motion was overruled. The defendant moved in arrest of judgment, for the following reasons: 1st. Because the declaration contains counts that cannot be joined. 2nd. Because the jury did not find all the issues. 3rd. Because there was no finding on the issues of liberum tenementum. 4th. Because the counts are not such, each of them, as issues can be joined to or judgment rendered thereon. This motion was also overruled. The court then gave judgment for five dollars, as a penalty under the statute, and also doubled the damages. The errors assigned are, that the court refused to grant a new trial. 2nd. That the court erred in refusing to arrest the judgment. 3rd. The court erred in admitting improper testimony. 4th. It is objected also, that the judgment for five dollars as a penalty, is erroneous. 5th. That the court struck out the fifth plea of defendant. 6th. That the court permitted certain amendments on the part of the plaintiff.

As to the amendments permitted, I have been unable to discover any error in that proceeding. The court has power by law, to permit amendments under terms for the furtherance of justice. All these seem to have been made for that purpose. The court ordered the fifth plea to be stricken out. Why this was done, I do not perceive very clearly; but I cannot say it did the defendant below any injury, as he had yet remaining another plea in form and substance the same. The court ordered a certain entry to be expunged, as entered by mistake. This the...