#### King *vs.*Havens and others.

In an action of *trespass, under the statute giving treble damages,*judgment will be rendered for *treble the amount of the damages found by the jury.*So held in a case where the jury assessed *single*damages only.

Where a court of common pleas refused to render judgment for *treble the amount*found by the jury, and such fact was stated upon the record, a writ of error was entertained, and the judgment of the common pleas was reversed, and judgment rendered for *treble damages.*

Error from the Madison 0. P. Hathaniel King, an attorney of the court of common pleas of the county of Madison, brought an action of *trespass under the statute giving treble*damages, against Peter B. Havens and others, trustees of the village of Hamilton, for cutting down six elm trees planted by him, and standing in front of his house and lot. They were planted in 1814, and in 1840 were cut down by order of the trustees, who were widening the side-walk in the village, the trees standing in the middle of the walk as proposed to be made. The defendants claimed that the ground upon which the trees stood had been dedicated to the public and gave evidence tending to establish that fact. The plaintiff on being informed of the intended attack upon his trees, forbade the person who was directed to cut them down, and told him that if the resolution of the trustees “ was carried into effect, it would afflict every member of his family.” His remonstrances however were unavailing, and he, *in proper**person, filed his declaration, in which, after stating the destruc- [ *421 ] tion of the trees, he sums up his injuries as follows: “ By which destruction the said plaintiff lost great expense of time, money and labor, which he had laid out in seeking, procuring, planting, watering, cultivating and defending those trees ; and all the benefit and solace of their shade in *322the heat of summer, the advantage of their shelter, the refreshment and entertainment derived from their verdure and undulating motion, and the pleasure continually felt in viewing and considering them as ornamental appendages to his house ; as specimens of flourishing vegetation ; as acquaintances for a long course of years ; and as substantial enhancement of the value of his lot: whereby he also lost all the pleasure which he so often enjoyed socially with the members of his family, and with his visiting friends ; and on the other hand, was subjected to great pain of feeling on his own account, and on account of the pain inflicted on his wife and children by that destruction and also was disturbed in his business, &c. The jury found a verdict for the plaintiff, which was entered upon the record in these words: <e and the jurors of that jury, &c. say upon their oaths, that the said defendants are guilty, &c. and *they assess the single damages of the said Nathaniel therefor over and above his costs and charges, to thirty dollars.*The record then states that the plaintiff thereupon moved the court to order an entry to be made in the minutes, specifying that title to land had come in question on the trial of th'e cause ; and also *moved the court to treble the amount of damages as assessed by the jury ;*that the first motion was granted, but the second denied, and that the plaintiff thereupon excepted to the decision of the court refusing to treble the damages, and accordingly presented a bill of exceptions, which was duly signed. The bill of exceptions is then set forth, and is followed by a judgment, *“*that the said plaintiff do recover against the said defendants the said thirty dollars, the *single damages,*so as aforesaid assessed, and also seventy-eight dollars and ninety-five cents for his costs and charges,” &c. The plaintiff sued out a writ of error, and at the last January term appeared in person and argued the case.

*M. T. Reynolds,*for the defendants,

insisted that in this case error did not lie; the refusal of the court to treble the damages, not being the subject of an exception, which could be passed upon by writ of error. The motion was an interlocutory proceeding, which could not properly appear upon the record, and the remedy of the plaintiff, if any, was by *mandamus.*

*By the Oonrt,*

Nelson, C. J.

The judgment is erroneous. Treble damages are the legal consequence of the finding, as certainly as a judgment is the consequence of a verdict. The Revised Statutes do not essentially differ in this respect from the old law, 2 *R. S.*261, *§ 1, 2; 1 R. L. of*1813, p. 525, § 39. In *Newcomb*v. *Butterfield,*8 *Johns. R.*342, was first suggested the mode of ascertaining and trebling the damages. If the jury find the defendants guilty of the trespass as alleged within the act, they are to assess *single damages,*and it is then the duty of the court to *323treble them. It is for the jury also to determine whether the defendants have brought themselves within the proviso or second section, namely, that the trespass was casual and involuntary, &e. This is not a question to be settled by the court on affidavit. In *Livingston*v. *Platner,*1 *Cowen,*175, it was held, that the jury must find *the single value*of the wood, &c. in terms, or the court would infer they had found the treble value; that the defendant had brought himself within the proviso. The old statute used the terms “treble value of the wood,” &c. for which *treble damages*have been substituted in the Revised Statutes. The finding here brings the case directly within these authorities. The court had no discretion over the matter, and should have rendered judgment for *treble damages.*We, therefore, reverse the judgment of the common pleas, and render such judgment as the court below should have given: *i. e.*that the plaintiff recover, as damages, *ninety dollars,*being treble the amount found by the jury.

Ordered accordingly