An Act for detecting and punishing Trefpaffes in divers Cafes, and directing Proceedings therein.

BE it enacted by the Governor, Council, and Reprefentatives, in General Court

trees on the.

affembled, and by the Authority of the jame, That no Perfon or Perfons Penalty for fhall cut, fell, destroy or carry away any Tree or Trees, Timber or Underwood cutting down whatfoever, ftanding, lying or growing on the Land of any other Perfon or lands of other Perfons, or off or from any fequeftered Lands for Town Common, or any com- perfons, &c• mon or undivided Lands in any Town, without Leave or Licence of the Owner or Owners of fuch Lands whereon fuch Trees, Wood, Timber or Underwood was ftanding, lying or growing, on Pain that every fuch Perfon fo cutting, felling, deftroying or carying away the fame, or that fhall be aiding or affifting therein, fhall for every fuch Treipafs, forfeit and pay to the Party or Parties injured or trefpaffed upon, the Sum of Ten Shillings for every Tree of Penalties, one Foot over, and for all Trees of greater Dimenfions three Times the Value thereof, befides Ten Shillings as aforefaid, and Five Shillings for every Tree or Pole under the Dimenfions of one Foot Diameter: Which feveral Penalties, Forfeitures and Damages, hall and may be recovered by Action, Bill, Plaint or Information, upon Conviction of the Trefpaffer or Trefpaflers, as is hereafter especially provided and enacted.

&c. how rew

coverable.

Brit further enacted and declared by the Authority aforesaid, That the Proprietors of the common and undivided Lands in the feveral Townships, are the When proPerfons trefpaffed upon, by cutting, felling, deftroying or carrying away any have the right prietors shall Timber, Tree or Trees, growing or laying on the common and undivided of action, &c. Lands in faid Towns: And that the lahabitants of the respective Towns are the Perfons trefpaffed upon by all fuch Trefpaffes as aforefaid, done in fequeftered Lands for Town Commons in fuch Towns.

Be it further enacted by the Authority aforejaid, That if any Perfon or Perfons fhall unlawfully throw down, or leave open any Bars, Gates, Fence or Fences belonging to or inclofing any common Field, or any Lands held in Propriety or Common, or belonging to any particular Perfon or Perfons within Penalty for throwing this State, fhall for every fuch Trefpafs, upon Conviction thereof, forfeit and down or leav pay to the Party or Parties injured thereby, double Damages; and alto a Sum ing open not exceeding Twenty-five Shillings, according to the Nature and Aggravation bars, &c. of the Trefpafs: To be recovered in Manner as aforefaid.

Penalty for

Be it further enacted by the Authority aforesaid, That every Perfon or Perfons that fhall fet Fire on any Lands in this State, that fhall run into any common and undivided Lands, or Town Commons, or Lands belonging to any fetting fire on particular Perfon or Perfons; fuch Perfon or Perfons fetting fuch Fire, or that lands, &c. fhall be aiding and affifting therein, fhall pay and fatisfy to the Owner or Owners of the Lands all Damages that shall be done by fuch Fire.

Be it further enacted by the Authority aforesaid, That no Perfon or Perfons fhall gather, deftroy, or carry away any Bayberries ftanding or growing on the Land of any other Perfon or Perfons without Leave or Licence of the Owner or Owners of fuch Perfon gathering, deftroying, or carrying away the fame, or that Penalty for fhall be ading or affifting therein, fhall forfeit and pay to the Party or Parties gathering injured or trefpaffed upon, three Times the Value of the Bayberries fo gather- other perfons ed, deftroyed, or carried away; and alfo the Sum of Three Shillings for every lands, &c. Bufhel fo gathered, befides the faid three Fold Value; and fo after that Rate for a greater or leffer Quantity: To be recovered in Manner as aforefaid.

And forafmuch as it is at some Times very difficult to detect or convict ang Trespasser or Trafpaffers against this At in the ordinary Method or Courfe of

bayberries on

the Law, by Reafon the Trespasses are generally committed where full Evidence can scarcely be bad.

Be it therefore enacted by the Authority aforefaid, That in Cafe any Dispute arife upon any Action, Bill, Plaint or Information brought as aforesaid, wherein the Plaintiff, Complainant, or Informer fhall charge the Defendant in If any difpute Trefpafs in any of the Particulars aforefaid, or of aiding or affifing therein, arife how ad- then, and in fuch Cafes, if the Plaintiff, Complainant or Informer fall make justed. Oath that there hath been fuch and fo many Facts committed as are charged in the Declaration, and that he fufpects the Defendant to have committed the faid Trefpaffes, although the Plaintiff, Complainant, or Informer may not be able to produce any other Evidence thereof than to render it highly probable, to the Court, Affiftant or Juftice before whom the Trial is, then and in every fuch Cafe (unless the Defendant fhall acquit himself upon Oath, that he did not do nor caufe to be done the Facts that are charged against him in the Declaration, or any of them, which Oath or Oaths the faid Court, Affiftant, or Juftice are hereby impowered to adminifter) the Plaintiff, Complainant, or Informer fhall recover the Penalties and Damages aforefaid, with Coft: But if the Defendant fhall in fuch Manner acquit himself upon Oath, as aforesaid, the Court, Affiftant or Juftice may, and fhall enter Judgment for the Defendant to recover double his Coft occafioned by fuch Profecution.

That if any Perfon or Perfons having their Faces blacked, painted. or any Perfons com- way difguifed, fhall either by Day or Night commit any of the Trefpafles afore mitting tref- faid; or fhall beat or abuse any of the Subjects or Citizens of the United paffes in dif- States, or any other Perfon or Perfons whatsoever under the Protection of the guife to be Laws of these States, and be thereof convicted by due Course of Law, fach publicly whipped, &c. Perfon or Perfons fo trefpaffing, fhall over and above the Penalties and Damages aforefaid, be publicly whipt, not exceeding twenty Stripes; as the Nature of the Trespass may require.

Provifo.

Always provided, That the Proprietors of the common, undivided Lands in the respective Towns, may grant Liberty for the cutting or felling any Tree or Trees, or carrying away any Timber, Wood or Underwood, growing or lying in their common or undivided Lands, under fuch Regulations and Reflrictions as they, or the major Part of them in their legal Meeting fhall fee Cause and appoint; and impower their Agents or Attornies in their. Place or Stead to profecute any Perfon or Perfons that shall trespass on their undivided Lands, contrary to this A&t.

And the like Power is hereby alfo given to the Inhabitants of the several Towns power relative to fe- Towns in their Town-Meetings, with respect to the Timber, Tree or Trees, queftered Wood or Underwood, growing or lying on Lands within their Townships felands. queftered for Town Commons, viz. To appoint Agents or Attornies to profecute any Perfon or Persons that shall trespass upon Lands fequestered for Town Commons, as aforefaid.

Provifo.

Provided also, and it is hereby enacted, That no Town fhall have Power to prohibitany Perfon or Perfons inhabiting in fuch Town from cutting Fire-Wood, or getting Fencing-Stuff for their own Ufes only, off and from any Lands fequeftered for Town Commons,under fuch reafonable Regulations as they shall agree to. Provided aljo, That all Agreements upon Record, in any Town in this State, concerning any the Timber, Wood, &c. in this Act mentioned, thall fo far as laid Act or Agreements concern the Inhabitants of fuch Town getting Timber, Wood, &c. on the common and undivided Lands, or Lands fequeftered for Town Commons in fuch Towns, for their own Ufe only, be, and be holden good and valid; any Thing to the contrary in this Act notwithstanding. And in cafe any Difpute arife about the Ufe for which any of the Wood, proof where Timber, &c. in this Act mentioned is got, the burden of Proof shall lie on him who pleads, or avers the Use he got fuch Timber, &c. for.

Provifo.

Burden of

Provided aljo, and it is hereby Enacted, That when the Court, Affiftant or Juftice before whom dny Trial upon this A&t fhall be had, fhall be well fatisfied that the Defendant was guilty through Mistake, and that he really believed the Timber or Bayberries complained of, when growing, were upon his own Land; that in fuch Cafe the Defendant thall be fentenced to pay to the Provifo. Plaintiff only the just Value of the Timber felled, taken away or deftroyed, or Bayberries gathered, carried away or deftroyed, and Cofts of Trial, and no more. Provided alfo, That nothing in this A&t fhall be conftrued to prevent or hinder any Town in this State from agreeing in their annual Town-Meeting Previfo. for fetting Fires in their own Commons, as formerly; in which Cafe the Inhabitants of the Town fo agreeing, fhall pay all Damage that thall be done by fuch Fires running and burning in any adjacent Township.

Be it further enacted by the duthority aforefaid, That if any Perfon whatfo- Penalty for ever shall take any Horse, Mare, or Drawing-Beaft, other than his own, out of taking anoany Inclosure, or Common-Field, or elsewhere, (except fuch Creature fhall be ther, horfe taken Damage-feafant, and difpofed of according to Law) without leave of the without leave Owner, and shall ride or use the fame; every fuch Perfon fhall pay to the Par- &c. ty wronged treble Damages; or if the Complainant shall defire it, only Six Shillings. And if the Perfon fo Offending thall be unable to make Payment, he bound in then he fhall by Service make Satisfaction therefor.

It unable to

pay then to

fervice.

•Provided, That all Offences against, or Breaches of this Paragraph be pro- Provifo. fecuted within fix Months after the fame are committed.

How to pro

That if any Horfe or other Beaft, fhall trefpafs in any Corn-field, or other Inclosure, being fenced in fuch Sort as fecures against Cows, Oxen, Calves Horfes, &c. and fuch like Cattle, the Party or Parties trefpaffed upon fhall procure two able trefpaffing in corn fields, Men, of good Report and Credit, to view and adjudge the Harms done; which fenced, &c. the Owner or Owners of the Beaft or Beafts fhall fatisfy when known, upon rea. sonable Demand, whether the Beast shall be impounded or not; but if the Owner or Owners be known, and near refiding, as in the fame Town, or the like, Notice thereof fhall be given to him or them, or left at the Place of his or their ufual Abode, before an Eftimation be made thereof, to the End he or they, or fome other Person appointed by him or them, may be prefent when the Judgment is made: The like Notice alfo fhall be left for him or them, of the Damage charged upon them, that if any fhall not approve thereof, he or they may repair to the Select-men, or fome of them, who shall in fuch Cafe nominate and appoint two able and indifferent Men to review and adjudge. the faid Harms; which being forthwith difcharged and paid, together with the Charge of Notice, former and latter View and Determination of Damages, the firft Judgment to be void, if not to ftand in Law.

And that when Damage is done to any Perfon or Perfons, if it appear to be done or happen by the meer Default of him or them to whom the Damage is done, it shall be judged no Trefpals, and no Damage fhall be given.

ceed, &c.

Trefpaffes done by mere

default no damages, &c.

to the faulty

&. if the defendant thail for up

And be it further enacted by the Authority aforesaid, That when in any Ac- party, &c. tion of Trefpafs brought before an Affiftant or Justice of the Peace, the De- ' fendant fhall justify upon a Plea of Title, a Record fhall be made thereof, In action of and the Matter of Fact fhall be taken pro Confeffo, and the Party making fuch trefpafs bePlea thall become bound with one or more Sureties, by way of Recognizance, fore Juice, unto the adverfe Party, in a reasonable Sum, not exceeding Twenty Pounds, on Condition that he fhall purfue his Plea, and bring forward a Suit for a Trial of his Title at the next Inferior Court of Common Pleas to be title he thall holden for the County in which fuch Trefpafs is alledged to be done; and ive bond, pay and fatisfy all Damages and Cofts, as by the Court fhall be awarded a- &c. and the gainft him; which Recognizance the faid Affiftant or Juftice is hereby im- cute referred powered to require and take, and fhall be paid for the fame by the Recogni- county court, zer and for recording the Plea, his legal Fees; and alfo at the Charge of &c.

M m

to the next

the fame Party fhall certify the Procefs and Record of fuch Plea, together with the Recognizance, unto the faid next Court; and if fuch Recognizer fhall neglect to bring forward fuch Suit at the faid Court, according to the tenor of his Recognizance, the Default shall be recorded, and a Writ of Scire Facias be iffued out of the Clerk's Office of the fame Court, for the recovery of the Sum or Penalty in the Recognizance mentioned, of him, his Surety or Sureties. Or if upon Trial before the faid Court he fhall not make out a title to the Land or Tenement on which the Trefpafs is laid to be done, paramount to the treble dama Poffeffion, or other Title of the adverse Party, Judgment fhall be rendered for the Party trefpaffed upon for treble Damages, and Cost of Suit.

If defendant fails to pay ges, &c.

Defendant

failing to give bond proceed on the merits.

Preamble.

Penalty for felling logs,

But if the Defendant in Tretpafs, juftifying on Plea of Title, fhail refuse or neglect to become bound in Manner as aforefaid, then his Plea fhall abate; and the Juftice notwithstanding the fame, fhall proceed to try the Caufe, and upon due Proof of the Trefpafs committed by him, fhall award Damages against him according to what fhall be made out, and Coft of Suit.

Whereas large Quantities of Logs and other Timber, Shingles and Staves art floated down Connecticut-River, and in a secret Manner are taken up and clazdeftinely difpofed of, jo that it's very difficult in the common Course of the Law to prove the fame; fo that great Loss and Damage thereby happens to the Owners thereof: Which to prevent ;

Be it enacted by the Governor, Council and Representatives, in General Court affembled, and by the Authority of the jame, That when any Person of Perfons fhall take up any Logs, Timber, Shingles or Staves, floating or floated down the faid River, the Logs and Timber being fairly marked, and the Shingles Logs, &c. taken up on and Staves bundled up, he fhall feize, bind, or well fecure the fame; and Connecticut that within one Week next after his or their taking up, ftopping and feizing river to be fe- the fame, enter the fame with the Kind, Bignefs, Length and Marks of the cured, &c. Logs and Timber, the Number of Bundles, and the Kind of Shingles and Staves, and by whom taken up, and the Places where they lie, with fuch Clerk or Clerks where Strays and loft Goods are by Law to be entered; and fhall let fuch Logs, Timber, Shingles and Staves lie, without difpofing thereof, or any Ways defacing the Marks thereon, full fix Months after the firft entering the fame; on Penalty of forfeiting and paying to the Owner or Owners of fuch Logs, Timber, Shingles or Staves, viz. the Sum of Ten Shillings for every Log or other Stick of Timber not exceeding thirty Feet in Length, and double the Value of fuch Shingles or Staves; and Ten Pounds for every Log or otherStick of Timber which exceeds thirty Feet in Length. And every Perfon or Perfons taking up, fafe fecuring, and entering any Logs, Timber, Shingles or Staves, fhall be entitled to a Fee of One Shilling and Two-pence, for taking, feizing and entering any Log or Stick of Timber not exceeding thirty Feet in Length, and the fame Sum for every Bundle of Shingles or Staves; Three-pence whereof fhall be allowed and paid to the Clerk for entering the fame; and Four Shillings and Two-pence for every Log or Stick of Timber which exceeds that Length, Three-pence whereof to be paid to the Clerk, as aforesaid.

&c. found floating in lefs than fix

months.

Penalties.

Reward for fecuring drifts.

And that no Owner or Owners of fuch Logs, Timber, Shingles or Staves Forfeiture for fhall take away any fuch Logs, Timber, Shingles or Staves, taken up, fecured taking them and entered as aforefaid, until he has paid the Fees aforefaid, on Penalty of away when forfeiting and paying to him or them that took up, fecured and entered the fame, as aforefaid, the Sum of Ten Shillings for each Log or Stick not exceeding thirty Feet in Length, and the Value of the Shingles and Staves so taken up, fecured and entered, as aforefaid, and Five Pounds for each Log er Stick of Timber above thirty Foot long.

feeured.

If no owner

appear within

6 months, to

And if no Owner appear to challenge, and make out his Claim thereto be fold, &c. within fix Months next after the Entry thereof, it shall and may be lawful

Trefpaffes.

for him or them that took up, fecured and entered the fame to difpofe thereof to hisor their own Ufe, without being accountable to the Owners thereof.

257

And when any Dispute shall arise in any Action brought on this Act, it shall Difpute how and may be lawful for the Court, Affiftant, or Justice of the Peace before to be adjustwhom the Trial may be, to proceed to examine the Parties under Oath, and ed. all other Evidence produced; and to make up fuch Judgment therein as to them fhall appear equitable and juft.

And whereas there might be confiderable Profit arise by floating of Timber down that Rivulet called Windfor-River, were there proper Provifion made for detecting and punishing such as privately take up and dispose of said Logs, &c. floating down faid River:

Wherefore,

Be it enacted by the Authority aforesaid, That whofoever fhall ftop or take up Penalty for any Saw-mill Logs or other Timber floating down faid River being fairly mark- ftopping logs, ed, without the special Direction or Order of the Owner or Owners of fuch &c. floating Logs or Timber, before fuch Logs or Timber have paffed by the Bridge, fet a-crofs faid River, in the first Society in Windsor, fhall for every Log or Stick of Timber thus ftopped, pay to the Owner or Owners of faid Logs, &c. the Sum of Ten Shillings.

down Windfor ferry river,

&c.

logs, &c.

And it is further enacted by the Authority aforesaid, That whofoever shall deface the Marks made on faid Logs or Timber, or any Way, difpofe of, or fell the fame, fhall forfeit and pay to the Owner or Owners thereof. for each Penalty for Offence, the Sum of Ten Shillings, and double the Value of faid Logs or Timdefacing marks on ber thus difpofed of, or whofe Marks thall be purpotely defaced. And when any Difpute fhall arise, in any Action brought on this Act, it shall and may be lawful for the Court, Alliftant, or Juftice of the Peace before whom the Trial may be, to proceed to examine the Parties under Oath, and all the Evidence produced, and to make up fuch Judgment therein, as to them shall appear just and equitable.

And in order to Compenfate for the Damage being done to the Proprietors and Owners of the Lands and Meadows adjoining said Windfor-River, by Reason of the Lags, &c. being carried thereon by the Floods:

Be it further enacted by the Authority aforefaid, That when Saw-mill Logs, Timber, Staves or Shingles, floating down faid Windfor-River, fhall be carried

of.

on to, and lodge on the Meadows or improved Lands of any particular Person, Lumber floait fhall be the Duty of the Owners or Poffeffors of fuch Lands or Meadows ting down whereon fuch Logs, Timber, Staves or Shingles are lodged, to enter an Ac- faid river count of the fame on the Records of the Town-Clerk of the Town where such how difpofed Lands lie, within thirty Days next after fuch Logs, Timber, Staves or Shingles fhall be found lodged, as aforefaid, with the particular Marks thereof and length of the Timber or Logs, and the Place where the fame are lodged, as aforefaid; and the Owner of fuch Timber, Logs, &c. fhall (on proving his Property therein) have Liberty to carry off his Timber, Logs, &c. lodged as aforefaid, on paying the Owners or Poffeffors of fuch Lands his or their reasonable Damages fuftained by faid Timber, &c. remaining on, and in carrying the fame off faid Lands; to be affeffed by the next Affistant, or Justice of the Peace, in Cafe the Parties do not agree; and alfo Six-pence for entering the fame on Record as aforefaid.

Be it further enacted, That if no Perfon appears to claim and carry off the Noowner apfaid Logs, Timber, Staves, or Shingles within nine Months after the Re- pearing in 9 cord thereof made as aforefaid, the Owner of fuch Lands whereon the fame months after record, may are lodged as aforesaid, may appropriate the fame to his own Ufe; any Law, be appropriUsage or Cuftom to the contrary notwithstanding.

Be it further enacted, That if any Perfon or Perfons fhall, without Liberty first had of the Owners or Poffeffors of the Lands or Meadows whereon fuch Timber, Logs, Staves or Shingles are lodged, and the Marks recorded as

ated, &c.