
    EDWARD D. EMERSON vs. JOSEPH BEAVAUS.
    In an action of trespass, under the statute, the judgment should be for treble the amount of damage assessed by the jury, unless it appears that the “defendant had probable cause to believe that the land on which the trespass is alleged to have boon committed, or that the thing so taken, carried away, injured or destroyed, was his own.’1
    ERROR TO PIKE CIRCUIT COURT.
    Buckner, for plaintiff in error.
    S3t, It is submitted that the first count is based upon the statute. R. S. 1068 title trespass.
    2d. It concludes, contra formam statnti, and in addition offence is brought within the terms of the statute. Lowe and Forsythe vs. Harrison 8 Mo. Rep, 850; 1 Chetty 356; Beeltman vs. Chalmer 1 Cowen 685; 8 John 345.
    3d. The verdict being found on this statutory count, the circuit court had no alternative, but to treble the damages, unless the evidence disclosed facts from whicli it could be inferred that defendant had probable cause to believe that the land was his own. Soc. 4 title trespass; Goorge vs. Rook I M. R.; Beekman vs. Chalmers 1 Cowen 285. me*
    
    4th. There is no pretence that the land was the defendants, or that he acted under this impression.
    5th. The reason given by the circuit court, for not trebling the damages, that the defendant supposed he was cutting on public land, finds no countenance either in the letter or spirit of the statute.
    Porter, for defendant insists :
    1st. That the count on which the verdict was found by the court setting as a jury, was not good as a count under the statute, because it is not averred in said count, that the defendant had no interest or right in the trees cut down and carried away, it may be that the defendant had no interest in the land trespassed upon, and still that he had an interest or right in or to the trees cut thereon. Lowe and Forsythe vs. Harrison 8 vo). Mo. Dec. p. 352, and it is averred only that he had no interest in the land, and not that he had no interest or right in the trees, of which the trespass is depricatod. 1st count of plaintiff’s declaration.
    2d. Admitting that the count found for the plaintiff is good as a count under the statute. It is contended that the court below was warranted by the reason and spirit of the statute in rendering a judgment only for the damages assessed. It appears from the testimony that the defendant cut down and barked the trees on lana of the plaintiff, believing that the same was public land, and therefore, that according to the custom of country, sanctioned by universal public opinion, he was doing no wrong. If the timber had been out on public land—such as defendant was credibly informed and believed it to be—the defendant would have been a trespasser only against “ Uncle Sam,’’ and the timber or bark taken away would have been the defendants as against all the world, save the aforesaid liberal and lenient land-holder. The defendant admits that the case made out by the testimony may be within the letter, but insists that it is not within the reason and spirit of the “ act to prevent certain trespasses ; and that the same cannot be so construed as to subject the defendant to treble damages, without a violation of the maxim “ qui haeret tetara kaerct in artice,
    
   Judge Birch

delivered the opinion of the court*

In this case, the circuit court put its declension to treble the damages which were found upon a statutory count in trespass “ On the ground, and for the reason that from the evidence the defendant had probable cause to believe that he was cutting on public land, and not on private property, and therefore not within the spirit of the statute.” We think otherwise, and that the only reason which should be entertained in extenuation of such a trespass, should be in the words of the statute— namely, that the land or the thing was “his own.’’

For this reason the judgment of the circuit court is reversed ; and this court proceeding to render such judgment as the circuit should have given, directs its clerk to enter a judgment herein for the sum of twenty-four dollars, being treble the damages found in the circuit court.  