Frost v. Rowse , 2 Me. 130 ( 1822 )

Mellen C. J.

delivered'the opinion of the Court as follows.

On the plaintiffs’ exceptions two reasons appear to have been assigned by the presiding Judge in the Court below for directing a nonsuit.

As to the first reason assigned, it appears by an examination of the section of the statute on which the action is founded, that it Is not necessary that the person committing the trespass should know the true owner of the logs; — and of course it was not necessary for the plaintiffs in the present case to state in the declaration that they were known by the defendants to be the true owners of the logs therein mentioned.

As to the second reason, we apprehend it to be at variance with the decision of the Supreme Judicial Court of Massachusetts in Boutelle v. Nourse, 4 Mass. 431. In that case it was decided that several persons guilty of a trespass might or might not be joined as defendants in an action of debt for a penalty incurred, according to the facts of the case. If the trespass was committed by several persons jointly, they might be jointly sued,— otherwise, not. But it cannot be ascertained by inspection of the declaration, whether the tort alleged was joint or several. Parsons; C. J. in delivering the opinion of the Court in the above case, says — “ although debt qui tarn lies to recover the penalty, “ yet the debt arises from a trespass, which in its nature is sev- “ eral as well as joint. The action may therefore be sued against “ one or more of the joint defendants, but the plaintiff can have “ but one satisfaction.” As we do not perceive any reason for questioning the correctness of the above mentioned decision, or the principles on which it is founded, we feel disposed to adopt it as the settled law applicable to the question before us. See 'also 1 Chitiy on Plead. 74. Burnham v. Webster, 5 Mass. 266.

The exceptions are therefore sustained. The nonsuit must be set aside, and a trial be had at the bar of this Court.