This action was brought against the defendant, Brooks, appellee heré, by the appellant, Rogers, under the provisions of section 3296 of the Code. This is the second appeal in the case.
' The complaint avers that defendant willfully and knowingly, and without the consent of the plaintiff, cut down and destroyed a large number of trees and saplings on plaintiff’s land. It was held in the former appeal, that the complaint was properly filed to recover for the alleged statutory penalty.—Rogers v. Brooks, 99 Ala. 31. The statute prescribes among other things, that when any person willfully and knowingly cuts down, destroys or takes away trees or saplings on land not his own, without the consent of the owner of the land, he must pay the owner a prescribed sum for each tree or sapling so cut, destroyed or taken awa’y. The complaint in this case avers, that the damage alleged was done without the consent of the plaintiff. The only question now presented for review is : Upon whom does the burden rest, upon the plaintiff, to prove she gave no consent, or, upon defendant to prove she gave it, for the cutting of the trees ?
The general rule, as stated in our decisions is, that the *551burden of proving a disputed fact rests, in all cases, upon the party affirming its existence, and claiming to derive right and benefit from it. A plaintiff is bound to make good his case, so far as it is denied by defendant. — 3 Brick. Dig. 433, •§ 388. An exception to this rule is recognized, to the effect, that when the subject-matter of a negative averment lies peculiarly within the knowledge of the other party, the averment is taken as true, unless disproved by that party, as in civil or criminal prosecutions for a penalty for doing an act which the statute does not permit to be done by any persons, except those who are duly licensed therefor, as for selling liquors, exercising a trade or profession, and the like.—Farrall v. The State, 32 Ala. 557; Atkins v. The State, 60 Ala. 45; Freiberg v. The State, 94 Ala. 91; 1 Greenl. Ev., § 79. In Haney v. Conoly, 57 Ala. 180, it is said: “The general rule of law is, that negative averments in pleading need not be proved.—Carpenter v. Devon, 6 Ala. 718; Walker v. Palmer, 24 Ala. 358. But where the negative allegation involves a charge of fraud, or breach of official duty, and many other violations of trust of a kindred character, the onus is on the party making the charge, for the presumption of the law is in favor of innocence.”
In respect to this general rule referred to above, that negative averments need not be proved, Mr. Greenleaf says: “One class of exceptions (to this rule) will be found to include those cases in which the plaintiff grounds his right of action upon a negative allegation,” and where, of course, the establishment of this negative is an essential element in his case, and he brings as an illustration of the rule a prosecution for a penalty given by statute, and states : ‘ ‘If the statute, in describing the offense, contains negative matter, the count must contain such negative allegation, and it must be supported by prima facie proof. Such is the case in prosecutions for penalties given by statutes, for coursing deer in inclosed grounds, not having the consent of the owner, (Rex v. Hazy, 2 C. & P. 458); or for cutting trees on lands not the party’s own, or taking other property not having the consent of the owner, (Little v. Thompson, 2 Greenl. 228); or for selling as a peddler, goods not of the produce or manufacture of the country. (Smith v. Moore, 6 Greenl. 274).” 1 Greenl. Ev., § 78.
The case of Little v. Thompson, 2 Greenl. 228, cited *552above from Maine, construed a statute which provided' that, “if any person shall take, carry away or convert to his own úse, without the consent of the owner, any log suitable to be sawed or cut into boards,” &c. he shall beheld liable to the owner for $50 for each log so cut and sawed; and the Supreme Court held, that the want of the owner’s consent formed a constituent part of the offense, which must be alleged in the declaration and proved at the trial. But in respect to the case last cited, and the instances given in section 78 of his work on evidence, and other like cases, Mr. Greenleaf adds : “that plenary proof on the part of the affirmant can hardly be expected, and therefore it is considered sufficient if he offer such evidence as, in the absence of counter testimony, would afford ground for presuming the allegation is true.”
It was necessary, then, it seems, for plaintiff to have made prima facie proof, that the alleged depredation to the timber was done without her consent. She proved by a written lease which she read in evidence, that defendant had rented a large tract of land from her for five years, and in the lease, he bound himself not to cut down or destroy any of the wood or timber on said premises, except such as were absolutely necessary for plantation purposes — for fuel, repairs and improvements tobe used or placed thereon — and that even for these purposes, he would only cut or take the timber or wood growing on specified localities. She then proved by her witnesses, that defendant had, on different occasions, within twelve months before the bringing of this suit, cut trees in large numbers and sold wood in large quantities off of the portions of said leased premises, on which defendant was prohibited by the terms of said lease, from cutting timber and wood. This evidence, we apprehend, was sufficient prima facie proof, in-the absence of counter testimony, to afford ground for presuming that the allegation in the complaint, that the timbers were cut and destroyed without plaintiff’s consent, was true, devolving on defendant, the burden of showing, that he did it with her consent. To show this, he introduced evidence, as the bill of exceptions states, to show that the plaintiff had seen the cutting going on, on one or two occasions, and had raised no objection thereto. Here, then, was evidence tending to show that the cutting was done with and without plaintiff’s consent, in which state of case, the *553general charge for defendant should not have been given. The question was one for the jury.
Reversed and remanded.