Campbell against Finney, 3 Watts 84

The opinion of the Court was delivered by Rogers, J. It would seem to be, under the act in question, rather the province of the jury than the court to find the double damages given by the act. That the jury have the power, under the direction of the court, there can be no doubt; and this was the method pursued in Rees v. Emerick et al., 6 Serg. & Rawle 286.

That was an action on the act of the 21st of March 1772, which declares, that if a distress and sale shall be made, when no rent is in arrear, the owner of the goods distrained and sold may, by action of trespass,or on the case, recover double the value of the goods. Justice Duncan, who tried the cause at nisi prius, directed the jury to find, first, such damages as, under all the evidence, they should think proper; and secondly, double the value of the goods sold and distrained. That the jury may so find, also appears from Livingston v. Platner, 1 Cowen 175; 1 Gall. Rep. 29; Newcomb v. Butterfield, 8 Johns.

Rep. 266. The jury, who try the issue joined, in an action wherein treble damages are recoverable, may assess the treble damages. Sayre’s Rep. 214. Justice Story, in Cross v: The United States, on a review of the authorities, says, “Were this a case (it was an action for a penalty) in which damages were demanded, we think it would be good either for the court or jury to assess the double damages, if it appeared on the record that such assessment was in fact made.” Here the plaintiff counts on. the statute with a demand from the jury for double damages, and the presumption is that the jury gave double damages.

And this presumption can only be negatived by a special finding of the jury themselves. The court have the power to double the damages only where the jury have shown by the verdict that they have not exercised the right. It is competent for the court to double the damages in cases in which they are not doubled by the jury; but the jury must find the facts by which it is to be determined whether the defendant be'liable to such damages.

The declaration should refer to the act, so that the defendant may be apprized of the extent of the demand, and the jury must find the damages and state that they are single damages. Newcomb v. Butterfield, 8 Johns. Rep. 264. The case of Livingston v.

Platner, 1 Cowen 175, which was trespass guare clausum fregit and for cutting the plaintiff’s trees contrary to the statute, it was also ruled, that to entitle the plaintiff to have his damages and costs trebled on motion, he must, first, count upon the statute; second, the jury must find generally for the plaintiff, and assess the single value of the wood, &c. cut and carried off, in terms. If they do not thus find, the court will intend that the jury have found the treble value.

In the case at bar, the jury found all the facts necessary to the action of the court, except that they failed to find that the damages were double or single. In the absence of such proof it was the duty of the court of common pleas to presume that the jury had found double. Judgment reversed, and judgment for the single damages found by the jury.