State v. Jacksons , 2 Del. 542 ( 1837 )

The defendants were indicted under the act of January 21, 1831, (8Del. Laws, 51,) for cutting trees, getting and conveying away staves, c, from the land of I. T. Cooper. They cut the timber and got staves for the tenant of the land; and two questions arose in the case — 1st. Whether a tenant is liable to indictment under the act, for cutting his landlord's timber; and 2d. Whether other persons employed by the tenant are so liable.

The Court expressed the opinion that an indictment would lie against the tenant, but it would be necessary for the prosecution to show that the cutting was against the consent of the landlord or owner which would generally require a stipulation in the lease against cutting. But where the cutting is excessive, it may be left to' a jury, without the production of a lease prohibiting it, to say if it was not against the landlord's consent; and so of a cutting for staves, or for other purposes not within the usual range of a tenant's license.

They were also of opinion on the other point, that any other person was liable for cutting timber contrary to the act, though employed by a tenant, and that it was not necessary for the state to prove that such person knew it to be against the consent of the owner. Such a construction would repeal the act; as it would be impossible to dive into the defendant's breast for his knowledge on the subject.

Verdict of conviction.