#### Ahijah Whitecraft, *et al,*Pltffs in Error, *v.*Horatio M. Vanderver, Deft in Error.

ERROR TO CHRISTIAN.

In an action of debt, brought under the 1st Sect, of the 104 ch. of the R S. for cutting, filling, áre., trees, it is necessary to allege in the declaration that the trees were felled without having first obtained permission so to do from the owner of the land, and the want of such an averment is fatal even after verdict. In order to make a party liable under this statute, all the facta upon which the statute creates the penalty must be alleged. It is not, however, necessary to allege in tire declarat on that the acts complained of, were done contrary to the form of the statute, provided that it clearly appears from the declai ation that the action is founded on the statute.

In order to subject a party to tbe penalties of this statute, he must have committed the acts knowingly and wilfully.

The declaration should also set out and distinguish the different classes to which the trees ielled belong, there being different penalties annexed to the felling of different trees.

This was an action of debt brought in the Christian Circuit Court, to recover a penalty under the statute for cutting trees. The declaration contains but one count, which is as follows: that they (the defendants) render unto the plaintiff the sum of eleven hundred and sixty-six dollars, which" they owe to and unjustly detain from him;—For that whereas heretofore, to wit, on &c., and from thenceforward continually, until the bringing of this suit, at &c., the said plaintiff was the owmer of certain land (describing it) and that the said defendants, on, &c., and on divers other days and times, before the bringing of the suit, did fell sixty-eight elm trees, sixty-eight elm saplings, &c., &c., which said trees and. saplings theretofore and up to the times of felling the same, as aforesaid, were standing and growing upon the land aforesaid, belonging to the plaintiff) as aforesaid. By reason whereof, and by force of the statute in such case made and pro*238vided, an action hath accrued to the said plaintiff, to demand and have of and from the said defendants a large sum of money, to wit, the sum of eleven hundred and sixty-six dollars, above demanded, yet &e., to the damage of the plaintiff of two hundred dollars. To this declaration there was a demurrer and joinder, and a plea of *nil debit*and issue joined thereon. The declaration was amended, and the cause was submitted to a j ury, and a verdict was found for plaintiff for $476, Davis, Judge, presiding. The cause was tried at a special term in August, 1850.

Motions for a new trial and arrest of judgment were made and overruled.

W. J. Ferguson, for Pltff in Error.

The judgment should have been arrested.

The declaration does not allege either that the trees were cut *vi et armis,*or that they were cut without permission of the owner.

That it was *without permission of the owner*is a material and essential averment, and its omission is fatal to the declaration.

It is a general rule of pleading that, in declaring upon a penal statute, the offence must be brought within the1 statute description, and the rule is well settled. The want of the owner’s consent, forms a constituent part of the offence created by the statute. The declaration is fatally defective without the averment, and the omission is not cured by verdict. Little *v.*Thompson, 2 Greenl., 230; Williams *v.*Hingham, 4 Pick., 344, 347; Spencer *v.*Overton, 1 Days, 183.

In an action upon statute for a penalty, the plaintiff must aver a case which brings the defendant within the act. He must negative the exceptions in the enacting clause, though he throw the burden of proof on the other side, and the omission is not cured by verdict. Spiers *v.*Parker, 1T. R., 141, Per Mansfield, C. J.; Bigelow *v.*Johnson, 13 Johns., 429; Morvel *v.*Fuller, 7 Johns., 403; Saper *v.*Harvard College; 1 Pick., 178; Drowne *v.*Stimpson, 2 Mass., 444; Williams *v.*Hingham, &c.; 4 Pick., 345; Wright *v.*Bennett, 3 Scam., 259; Whitesides *et ux, v.*Divers, 4 Scam., 336; Edwards *v.*Hill, 11 Ill., 24; Daggett *v.*Connecticut, 4 Conn., 60; Booth *v.*State, 4 Conn., 67; Leonard *v.*Bosworth, 4 Conn., 424; Eustis *v.*Kidder, 26 Maine, 98.

*239The declaration does not aver that the offence was committed *against the form of the statute.*

In penal actions upon statutes, the declaration must conclude ■“ against the form of the statute,” or contain that allegation in some part of it, and the omission of this averment is not cured by verdict.

“Whereby, and by force of the statute in such case made and provided an action hath accrued, &c.,” is not sufficient. Fife *v.*Bonsfield, 51 Com. Law R, 100; Lee *v.*Clarke, 2 East, 333; Sears *v.*U. States, 1 Gal., 257; Smith *v.*U. States, 1 Gal., 261; Nichols *v.*Squire, 5 Pick., 169; Peabody *v.*Hayt, 10 Mass., 39; Wells *v.*Iggulden, 3 Barn. & Cresw., 186; the People *v.*Bartow, 6 Cowen., 291; Haskell *v.*Moody, 9 Pick, 162.

Lincoln & Heendos", for Lefts in Error.

1. The Statute of this State to ¡orevent trespassing upon and cutting timber is not a *purely penal*Statute, but a kind of *remedial*one—at least not penal. 13 Pick., 100; 6 Iredell, 352; 10 Missouri, 781; 1 Blackstone Com., 87 note.

2. It is not necessary to prove that the defendants *vÁlfvlly*and *maliciously trespassed*upon the land and cut the timber. It was a defence once to a certain extent, but that extent was repealed in 1833. Revised Laws, 604, sec. 6, and the repealing clause following sec. 1; 6 Blackford, 258 ; 5 Mass., 341.

3. It was a joint act; they were tenants in common of the land which they owned, and all were seen cutting upon the land. The acts of one, where a ¡Dre-concert has been proved, is the act of all; Greenleaf’s Evidence, Secs. 108—171; 10 Wendell, 654; 5 Mass., 266.

4. The plaintiffs urge, -without cause, that there should have been a new trial, and that judgment should have been arrested. 12 Gill & Johnson, 484; 6 Iredell, 352; 13 Pickering, 100; 17 Wendell, 87; 1 Cowen, 584.

Trumbull, J.

All the facts stated in the declaration may be true, and yet the defendants below have committed no act that would subject them to this action. It is not alleged that they felled the trees without having first obtained permission so to do from the owner of the land, nor even that they did the acts complained of with force and arms, or unlawfully.

*240The declaration, after setting forth the felling of the trees on the land of the plaintiff, alleges, that “by force of the statute in such case made and provided, an action hath accrued, &c.” There is no statute giving an action of debt in such a case as that stated. The words of the law. E, S. ch. 104, sec. 1, are: “Any person who shall cut, fell, box, bore, or destroy, or carry away any black walnut, black, white, yellow, or red oak, white wood, poplar, wild cherry, blue ash, yellow or black locust, chesnut, coffee or sugar tree, or sapling, standing or growing upon land belonging to any other person or persons, without having first obtained permission so to do, from the owner or owners of such lands, shall forfeit and pay for such tree or sapling, so cut, felled, boxed, bored or destroyed, the sum of eight dollars.” The subsequent part of the same sections prescribes a penalty of three dollars for cutting, &c., trees of anyother description than those before enumerated.

The want of permission from the owner is a necessary ingredient to constitute the offence, and he who would make a party liable under the statute, must allege all the facts upon which the statute creates the penalty. The rule is well settled, that when an action is given by statute which contains an exception in the same clause which gives the right of action, the plaintiff must negative such exception in his declaration, but if there be a subsequent exemption, that is a matter of defence, and the other party must show it to protect himself against the penalty. 1 Ch. Pl. 223; Teel *v.*Fonda, 4 John., 304.

Here the qualification of the right of action, is contained in the very same section and clause of the statute which gives the right, and should, therefore, have been negatived in the declaration; nor is the defect aided by verdict. It is not like the case of a title defectively set forth; but there is an omission to allege a fact material to the title or right to recover which is in no way connected with, and cannot be implied from any fact that is alleged. In such a case it is error to refuse a motion in arrest of judgment. Little *v.*Thompson, 2 Greenleaf R. 228; Williams *v.*Hingham, 4 Pick., 341.

The declaration is also objected to, because it does not allege that the acts complained of, were done contrary to the form of the statute. This particular allegation we deem unne*241cessary, provided it clearly appears from the declaration that the action is founded on a statute; Cook *v.*Scott, 1 Gil., 333.

The declaration before us is very general, and although the penalty for cutting part of the trees therein mentioned, is eight dollars, and for cutting others, three dollars per tree, yet in the declaration, a gross sum is claimed for felling he whole, without distinguishing to which class any of the trees belong. Mo advantage can probably be taken of this generality in a motion in arrest of judgment after verdict; but it would certainly be more in accordance with the rules of pleading, for the declaration to show distinctly, that under and by virtue of the statute the defendants had forfeited and become liable to pay eight dollars per tree, for each and every tree felled of certain kinds—naming them—and three dollars for others.

The question of intention or knowledge on the part of the defendants that they were trespassing upon the land of the plaintiff, as necessary to render them liable to this action, was raised in the court below, has been argued here and will probably arise again upon another trial. It beeomes therefore necessary to settle it now. Notwithstanding the statute, a party may still sue in trespass for an inj ury to his timber in the same manner as if the statute had never been enacted.

The object of the statute is to furnish an additional remedy to the owner of the land, and also to punish the wrong doer.

To subject a party to such punishment, he must have committed the wrong knowingly and wilfully, or under such circumstances as show him guilty of criminal negligence. It could never have been the intention of the Legislature to impose a penalty upon a person, who, supposing in good faith that he was cutting upon his own land after having taken reasonable pains to ascertain its boundaries, should, inadvertently and by mistake, cut trees upon the land of another. Cushing *v.*Dill., 2 Scam., 461; Batchelder *v.*Kelly, 10 N. H. 436. For an injury committed under such circumstances, the party is left to his common law remedy by action of trespass.

The judgment of the Circuit Court is reversed, and the cause remanded, with leave to the plaintiff below to amend his declaration.

*Judgment reversed.*