delivered the opinion of the Court.
The first cause assigned for arresting the judgment is abandoned ; it appearing that the supposed offence was committed since the statutes of Massachusetts were revised, and the statute of this state was enacted. The only question is, whether the second reason assigned is sufficient. It seems to be admitted that, on demurrer, the declaration would be clearly bad, because it does not contain an allegation that the logs were taken, sawed, destroyed, &c. “ without the consent of the said Josiah Little the owner.'’’’
The words of the act of 1821. ch. 168. sec. 1. are, “ if any “ person shall take, carry away or otherwise convert to his own “ use, without the consent of the owner, any log suitable to he “ sawed or cut into boards, clapboards,” See. The want of the owner’s consent forms a constituent part of the offence created by the statute.
There being no averment that the logs were taken and carried away with force and arms, all the declaration may be true ; and yet they may have been taken and carried away by the consent of the owner, without the commission of trespass at common law. The only charge is, that they were taken, &c. contrary to the statute in such case made and provided ; and there is no statute against such taking and carrying away as is alleged. The statute also says the logs must be suitable to be sawed or cut. Has the verdict cured these defects ? It is a general rule of pleading that, in declaring upon a penal statute, the offence must be brought within the statute description, and it seems to be well settled. The argument is, that if the plaintiff had not proved that the taking was without his consent, he could not have obtained a verdict in his favour,.and that therefore the Court must now presume that such fact was proved. Upon this point, the authorities do not perfectly agree; but the line of distinction between those things which may, and those which may not be presumed after verdict, has in modern cases been drawn more clearly than in some of the ancient decisions. The case of Spears v. Parker, 1 D. & E. 141. is a strong one to shew that the verdict has not cured the defects of the declaration. Judgment was there arrested because the exceptions in the enacting clause of the statute, on which *231the action was founded, were not negatived by the plaintiff in his declaration. Buller J. says,- — “ As to its being intended “ after verdict, nothing is to be presumed but what is exprcss- “ ly stated in the declaration, or what is necessarily implied from “ those facts which are stated. I know of no decision against “ this rule.” The principles of law on this subject, as settled by the numerous cases in the books, are concisely stated in a learned note to page 186, 1 Day,s Rep, which is understood to have been drawn up by Judge Reeve.
Some of the rules he lays down may be cited here; “ The “ total omission of any material fact, which is in no way con- “ nected with any fact alleged, is not cured by verdict.” — “ In “ many cases, facts entirely omitted are so connected with facts “ alleged, that the facts alleged cannot be proved, without prov- “ ing those omitted. For instance, where notice to the defend- “ ant is necessary to be stated, if notice is stated, but the time' “ and place when and where given is omitted; as notice could “ not be proved without proving the time and place, these are “ presumed to be proved to the jury. But let the fact of notice be omitted, and it could not regularly be proved, and, of “ course, there is no room for presumption. And so it is in “ every case where a fact is omitted which makes a part of the “ gist of the action; and I think all the cases on the subject “ will come within some of the rules and distinctions mentioned “ above. See Doug. 683. 1 Salk. 364. 2 Salk. 662. 1 D. & “ E. 141.” “Another substantial reason why material facts “ not stated cannot be presumed to have been proved, is, that “thejury are bound to find a verdict for the plaintiff when “ they find all the facts stated in the declax-ation to be true; “ and the plaintiff is not obliged to prove any more than he has “ stated. The idea then which has been entertained by some “ respectable lawyers, that after verdict the Court will presume “ facts, not stated, necessary to support legal inferences, ap- “ pears to be unfounded.”
Several of the cases cited in the above note, and some of the illustrations, refer to actions at common law, as on contract, &c. And if these principles are applicáble to that class of actions, a fortiori, they are to actions on penal statutes, although of a remedial character’. The case of Moor v. Bosworth cited *232by the plaintiff’s counsel was decided upon the principle that á substantial offence was set forth, and the fact omitted must have been proved in establishing the facts which' were stated; vizi the payment of the fees unlawfully demanded. But in that case, if the declaration had not contained añ averment that the defendant wilfully and corruptly received the money, it would have béen clearly bad, because those words are a substantive part of the description of the offence, as, in the case before us,' are the words “ without the consent of the plaintiff.”
It is our opinion that the declaration is fatally defective, and that the defects are not curéd by the verdict. And accordingly the
Judgment is arrested i