St. Clair County IL Archives Court.....Edwards, V Hill 1849
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Source: Reports Of Cases Illinois
Written: 1849

Ninian W. Edwards v. Elijah Hill.

Appeal from St. Clair.

1. Pleading — non joinder of plaintiffs. In actions of torts, the non joinder 
of persons interested with the plaintiff, must be pleaded in abatement, and 
can not be taken advantage of on the trial, otherwise than in mitigation of 
damages.(1)

2. Same. If the defendant omits to plead the non joinder in abatement, the 
plaintiff may have judgment for his aliquot share of the damages sustained. 
And the other persons in interest may, in another action, recover to the 
extent of the injury sustained by them.

3. Parties to action — statutory penalty. In an action to recover a specific 
penalty, given by a statute, which does not rest in computation, the owners of 
the land must all join in the action.

4. Statute, penal — remedy strictly pursued. A remedy on a penal statute must 
be strictly pursued, and before a party is allowed to recover under it, he 
must bring himself clearly within its provisions.(2)

This was an action to recover penalties for cutting timber, brought by Edwards 
against Hill. Heard at April term, 1848, before Joseph Gillespie, esq., 
presiding by consent, in place of Koerner, judge, interested in the case, and 
a jury. Verdict and judgment for defendant, and an appeal by the plaintiff.

G. Koerner, for appellant. W. H. Underwood, for appellee.

Treat, C. J. This was an action of debt to recover penalties for cutting 
timber. The declaration alleged that the plaintiff was seized in fee of the 
land on which the trees were cut. The plea was nil debet. The evidence showed 
that the plaintiff had title to but six-sevenths of the land. On this state of 
case, the court instructed the jury that the plaintiff could not recover. The 
propriety of that instruction is the only question in the case. The statute 
gives the owner a certain penalty for each tree of a particular description 
cut on his land, without his permission, and authorizes him to recover the 
penalty in an action of debt. R. S. 525. Under this statute it has been 
decided that the party claiming to recover the penalty, as owner, must aver in 
his declaration, and prove on the trial, that he is the owner, in fee simple, 
of the land on which the trespass was committed. Wright v. Bennett, 3 Scam., 
258; Mason v. Park, do., 532; Whiteside v. Divers, 4 Scam., 336; Jarrot v. 
Vaughn, 2 Gilman, 132; Clay v. Boyer, 5 Gilman, 506.

It is insisted that the rules governing actions in form ex delicto, are 
strictly applicable to this proceeding.  It seems to be well settled that, in 
actions for torts, the non joinder of persons interested with the plaintiff 
must be pleaded in abatement, and can not be taken advantage of on the trial, 
otherwise than in mitigation of damages. If the defendant omits to plead the 
non joinder in abatement, he, thereby, consents to a severance of the cause of 
action, and the plaintiff may have judgment for his aliquot share of the 
damages sustained. 1 Chitty's Pleadings, 66; Addison v. Overend, 6 D. and 
East, 766; Wheelwright v. De Peyster, 1 Johnston, 471; Thompson v. Hoskins, 11 
Mass., 419. And the other persons in interest, may, in another action, recover 
to the extent of the injuries sustained by them. Sedgeworth v. Overend, 7 D. 
and East, 279; Baker v. Jewell, 6 Mass., 460. If this was an ordinary action 
for the trespass, the plaintiff would be entitled to recover six-sevenths of 
the damages done to the estate, and the other tenant in common could, in a 
subsequent action, recover the residue. But this is a proceeding to recover a 
specific penalty, given by the statute, and we are not prepared to decide that 
the rule indicated should control it. The amount to be recovered does not rest 
in computation, but is fixed by the statute, and we are not aware of any 
principle or authority that will justify the splitting up of a penalty, and 
allow it to be recovered in fragments, by the several owners of the land. And 
this must be done if this action can be sustained. On no principle would the 
other tenant in common be concluded, by a recovery in this action, and the 
plaintiff could not, therefore, have judgment for the whole penalty. The 
penalty must he regarded as indivisible. The whole must be recovered or 
nothing. The inevitable consequence seems to be, that the owners of the land 
must all join in an action to recover the penalty. A remedy on a penal statute 
must be strictly pursued, and before a party is allowed to recover under it, 
he must bring himself clearly within its provisions.

The judgment of the circuit court is affirmed, with costs.

Judgment affirmed.

-----------------
Cited—Johnson v. Richardson, 17 Ill., 302; Moore v. School Trustees, 19 Ill., 
83; Reed v. Hastings, 61 Ill., 266; Menard Co. v. Kincaid, 71 Ill., 587; 
Gilbert v. Bone, 79 Ill., 341; C. R. I. & P. R. R. Co. v. Todd, 91 Ill., 70.

(1) In action ex delicto, where the remedy seeks the recovery of damages and 
not the specific thing, the non joinder of parties plaintiff can only be taken 
advantage of, to defeat the action, by plea in abatement, Johnson v. 
Richardson. 17 Ill., 302, as, where & feme covert sues in an action where she 
might be joined with her husband, Huftalin v. Misner, 70 Ill., 205, see Eich 
v. Sievers, 73 Ill., 194; Zuel v. Bowen, 78 Ill., 234; so, if the action be by 
several and one of these be, in fact, deceased before suit commenced, Camden 
v. Robertson, 2 Scam., 507. The defendant has this plea on the ground of 
right, that he may have the cause of action adjudicated in a single suit, 
Chi., R. I. & P. R. R. Co. v. Todd, 91 Ill., 70; but, the omission to join 
party, or parties, is waived unless the objection be taken at the earliest 
moment, Huftalin v. Misner, 70 Ill., 205. Where, however, the wrong party sues 
for an injury to property, as if one not the owner of the legal title shall 
sue, the defendant need not plead in abatement; for this is error fatal under 
the general issue and, if apparent on the face of the declaration, on demurrer 
or in arrest of judgment, M'Lean Coal Co. v. Long, 91 Ill., 617. In actions ex 
contractu, if there be too few or too many parties, advantage may be taken of 
the defect by plea in abatement, or as ground of nonsuit, on trial, under the 
general issue, Snell v. De Land, 91 111., 617.

(2) Re-affirmed, Erlinger v. Boneau, 51 Ill., 95. It is the rule that a penal 
statute will be strictly construed and never enlarged or extended by 
construction or implication, to either persons or things not expressly brought 
within its terms, Raplee v. Morgan, 2 Scam., 561; Chicago v. Rumpf, 45 Ill., 
90; Bullock v. Geomble, 45 Ill., 218; Chi. & N. W. R'y Co. v. Stanbro, 87 
Ill., 195; People v. Peacock, 98 Ill., 172. This is true, also, of all 
statutes whereby special proceedings are authorized by which to divest one of 
property to the advantage of another, People v. Otis, 74 Ill., 384; Curtis v. 
Bradley, 75 Ill., 180; People v. Dulaney, 96 Ill., 503; wherefore, all facts 
necessary to constitute an affirmative case, in providing for their violation, 
must be set out and proved, Waddle v. Duncan, 63 Ill., 223.

Additional Comments:
Reports of Cases Argued and Determined in the Supreme Court of the State of 
Illinois, from November Term, 1849, to June Term, 1850, Both Inclusive. By 
Ebenezer Peck. Volume XI. Annotated by Henry Binmore, of the Chicago Bar. 
CHICAGO: CALLAGHAN & CO. 1886.

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