John W. Perkins v. Elizabeth Hackleman et al., 26 Miss. 41

Mr. Justice Yerger delivered the opinion of the court. This is an action of debt brought under the provisions of the statute for cutting down timber-trees on the land of the defendants in error. Hutch. Code, 280. The facts proved made out a case falling clearly within the provisions of the statute. The timber was cut down during a series of years, for the purpose of stripping the bark off, to be used in tanning.

The proof shows, that it was cut on the land of the defendants in error, by direction of the plaintiff’ in error, and the pretence, that he supposed the land belonged to the government, and not to defendants in error, will not avail him. In the first place, it is not true in point of fact, because it is in proof, that, in 1846, the defendant was shown the lines of this tract of land, told that it belonged to defendants in error, and that his hands were cutting timber on it; yet he continued cutting for several years afterwards.

But to give defendant the full benefit of the defence attempted by him, it is clear that he is liable to the penalty of the statute. We think the rule laid down in Alabama under a similar statute correct. If a party intending to commit a trespass on public lands, through mistake cut down trees on the land of another person, he is liable to the penalty. 15 Ala. R. 648. The case would be different, if, intending to cut upon his own lands, by mistake he should go beyond his own boundary, and cut timber on the land of another, supposing he was cutting on his own.

In such a ease, we would incline to think he would not be liable to the penalty, but only for the actual damage done. Although the verdict and judgment are not strictly technical and formal, yet as no injury can result therefrom to the plaintiff in error, we will not disturb them. Let the judgment be affirmed.