The appellees T. J. Redditt and wife sued the appellant Vicksburg Hardwood Company to recover the statutory penalty for cutting and removing from appellees’ land certain trees and for the actual value thereof, and also for damages in connection with other alleged trespasses.
The statutory penalty of $15 per tree is imposed by Section 1075, Code of 1942, as to trees of a particular species. According to the testimony on behalf of the complainants, who are the appellees here, thé defendant Vicksburg Hardwood Company cut twenty-five trees off the land of the appellees without their consent, and twenty-four of which trees were of the species enumerated in the statute, the other one being a sycamore tree, for which the statute requires that the defendant shall pay the sum of $5. In other words, the suit under one count of the declaration is for $365 under this statute. The plaintiffs’ proof tended to show that the actual value of these trees “would be over, a hundred dollars worth”; and that it “would cost right at a hundred dollars” to compensate the complainants for the damages done to a road on his land over which logs were hauled. There is no proof in the record to sustain a judgment for more than $565. Nevertheless, the jury returned a verdict for $618. Upon the motion for a new trial the court should have reduced the judgment to the sum of $565.
There was a sharp conflict in the testimony as to whether more than six trees were cut and removed by the defendant from the land, and as to whether or not an agreement had been made whereby the defendant was to pay only the actual value for the timber. But we *333think that an issue was presented for the decision of the jury as to whether the defendant should pay the statutory penalty and the actual value for the twenty-five trees testified to by the complainants.
If the appellees shall within ten days from this date enter a remittitur reducing the judgment from $618 to $565 the judgment appealed from will be affirmed, otherwise the cause will be reversed and remanded for a new trial.
Affirmed with remittitur.
Arrington, Ethridge, Rodgers, and Jones, JJ., concur.