422 To apply for an account of Enes. Penalty for cutting down trees on the Jands of ether perfons, &c. Trefpaffes. 13. And it fhall be the Duty of every Town Treasurer to apply himfelf to the Civil Authority in the refpective Towns, for an Account of all fuch Fines and Forfeitures as fhall be recovered by Judgment before fuch Authority, belonging to the Treafury of the Town where fuch Judgment is given, at leaft within one Year after Judgment is given, and receive the faid Fines and Forfeitures for the Ufe of faid Town. An A&t for detecting and punishing Treffpaffes in divers B PAR. 1. E it enacted by the Governor and Council, and Houfe of Reprefentatives, in General Court affembled, That no Perfon or Perfons fhall cut, fell, deftroy or carry away any Tree or Tices, Timber or Underwood whatfoever, ftanding, lying_or growing on the Land of any other Perfon or Perfons, or off or from any fequeftered Lands for Town Common, or any common 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 standing, lying or growing, on Pain that every fuch Perfon fo cutting, felling, deftroying or carrying away the fame, or that fhall be aiding or affifting therein, fhall for every fuch Trespass, forfeit and pay to the Party or Parties injuPenalties, &c. red or treifpalled upon, the Sum of One Dollar and Sixty-feven how recovera- Cents for every Tree of one Foot over, and for all Trees of grea-. ter Dimenfions three Time, the Value thereof, befides One Dollar and Sixty-feven Cents as aforefaid, and Eigty-four Cents for every Tree or Pole under the Dimenfions of one Foot Diameter: Which feveral Penalties, Forfeitures and Damages, fhall and may be recovered by Action, Bill, Plaint or Information, upon Conviction of the Trefpafler or Treffpaffers, as is hereafter elpecially provided and enacted. ble. When pro prietors thall have the right of action, &c. 2. Be it further enacted and declared, That the Proprietors of the common and undivided Lands in the feveral Townships, are the Perfons trefpaffed upon, by cutting, felling, deftroying or car rying away any Timber, Tree or Trees, growing or lying on the common and undivided Lands in faid Towns: And that the Inhabitants of the refpective Towns are the Perfons trespassed upon by all fuch Ticfpaifes as aforefaid, done in fequeflered Lands for Town Commons in íuch Towns. 3. Be it further enacted, That if any Perfon or Perfons fhall unPenalty for lawfully threw down, or leave open any Bars, Gates, Fence or throwing Fences belonging to or inclofing any common Field, or any Lands sown or leav- held in Propriety or Common, or belonging to any particular Pering open bars, fon or Perions within this State, fhall for every fuch Trefpafs, upon Conviction thereof, forfeit and pay to the Party or Parties injured thereby, double Damage; and alfo a Sum not exceeding Five Dollars, according to the Nature and Aggravation of the Trefpafs: To be recovered in Manner as aforefaid. 4. Be it further enailed, That every Perfon or Perfons that fhall fet Fire on any Lands in this State, that fhall run into any com mon and undivided Lands, or Town Commons, or Lands belong- Panalty for ing to any particular Perfon or Perfons; fuch Perfon or Perions fetting fire on lands, &c. fetting fuch Fire, or that fhall be aiding and affifting therein, fhall pay and fatisfy to the Owner or Owners of the Lands all Damages that fhall be done by fuch Fire. Penalty for 5. Be it further enacted, 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 Li- bayberries on cence of the Owner or Owners of fuch Lands whereon fuch Bay- other perfor berries were ftanding or growing, on Pain that every fuch Perfon lands, &c. gathering, deftroying, or carrying away the fame, or that fhall be aiding or affifting therein, fhali forfeit and pay to the Party or 'Parties injured or trefpaffed upon, three Times the Value of the Bayberries to gathered, deftroyed, or carried away; and also the Sum of Fifty Cents for every 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. 6. And forafmuch as it is at fome Times very difficult to detect or convict any Trefpaffer or Trefpaffers against this All in the ordinary Method or Courfe of the Law, by Reafon the Trefpaffes are generally committed where full Evidence can fcarcely be had. Be it therefore enacted. That in Cafe any Difpute arife upon any Action, Bill, Plaint or Information brought as aforefaid, wherein If any dispute the Plaintiff, Complainant, or Informer fhall charge the Defend- arife, how adant in Trespass in any of the Particulars aforefaid, or of aiding or justed. affifting therein, then and in fuch Cafes, if the Plaintiff, Complainant or Informer fhall make 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 cause 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 empowered 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 aforefaid, the Court, Affiftant, or Juftice may, and fhall enter Judgment for the Defendant to recover double his Coft occafioned by fuch Prosecution. 7. That if any Perfon or Perfons having their Faces blacked, Perfons compainted, or any way difguifed, fhall either by Day or Night com- mitting tref mit any of the Trefpaffes aforefaid; or fhall beat or abuse any of palles in dif the Subjects or Citizens of the United States, or any other Perfon guife to he publicly or Perfons whatsoever under the Protection of the Laws of thefe whipped, &c. States, and be thereof convicted by due Course of Law, fuch Perfon or Perfons fo treffpaffing, fhall over and above the Penalties and Damages aforefaid, be publicly whipt, not exceeding twenty Stripes; as the Nature of the Trefpafs may require, 424 Provifo. Trefpaffes. 8. Always provided, That the Proprietors of the common, undivided Lands in the refpeftive 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 com mon or undivided Lands, under fuch Regulations and Reftrictions as they, or the major Part of them in their legal Meeting fhall fee Caufe and appoint: and empower their Agents or Attornies in their Place or Stead to profecute any Perfon or Perfons that fhall trefpafs on their undivided Lands, contrary to this Act. 9. And the like Power is hereby alfo given to the Inhabitants of the feveral Towns in their Town-Meetings, with refpect to relative to fo the Timber, Tree or Trees, Wood or Underwood, growing or lying on Lands within their Townships fequeftered for Town Commons, viz. To appoint Agents or Attornies to profecute any Perfon or Perfons that fhall trefpafs upon Lands fequeftered for Town Commons, as aforefaid. Towns power queftered lands. Provifo. Provifo. Burden of proof where to lie. Provifo. Provilo. 10. Provided alfo, And it is hereby enacted, That no Town fhall have Power to prohibit any Perfon or Perfons inhabiting in fuch Town from cutting Fire-Wood, or getting Fencing-Stuff fat their own Uses only, off and from any Lands fequeftered for Town Commons, under fuch reafonable Regulations as they fhall agree to. 11. Provided alfo, That all Agreements upon Record, in any Town in this State, concerning any the Timber, Wood, &c. in this A&t mentioned, fhall fo far as laid Acts or Agreements concern the Inhabitants of fuch Town getting Timber, Wood, &c. on the common and undivided Lands, or Lands fequestered 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 A&t notwithstanding. 12. And in cafe any Difpute atife about the Ufe for which any of the Wood, Timber, &c. in this A&t mentioned is got, the burthen of Proof fhall lie on him who pleads, or avers the Ufe he got fuch Timber, &c. for. 13. Provided alfo, and it is hereby enacted, That when the Court, Affiftant or Justice before whom any Trial upon this Act fhall be had, fhall be well fatisfied that the Defendant was guilty thro' Miftake, and that he really believed the Timber or Bayberries complained of, when growing, were upon his own Land; that in fuch Cafe the Defendant fhall be fentenced to pay to the Plaintiff only the juft Value of the Timber felled, taken away or deftroyed, or Bayberries gathered, carried away or deftroyed, and Cofts of Trial, and no more. 14. 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 for fetting Fires in their own Commons, as formerly: in which Cafe the Inhabitants of the Town fo agreeing, fhall pay all Damage that fhall be done by fuch Fires running and burning in any adjacent Township. 15. Be it further enacted, That if any Perfon whatsoever shall take any Horie, Mare, or Drawing-Beaft, other than his own er's horfe out of any Inclofure, or Common-Field, or elsewhere, (except Penalty for fuch Creature fhall be taken Damage-feafant, and difpofed of ac- taking anothcording to Law) without leave of the Owner, and shall ride or without leave ufe the fame; every fuch Perfon fhall pay to the Party wronged &c. treble Damages; or if the Complainant fhall defire it, only One If unable to Dollar. And if the Perfon fo offending fhail be unable to make pay, then to Payment, then he fhall by Service make Satisfaction therefor. fervice. Provided, That all Offences againft, or Breaches of this Para- Provifo. graph be profecuted within fix Months after the fame are committed. be bound in corn-fields, 16. That if any Horse or other Beast, shall trespass in any Corn. field, or other Inclosure, being fenced in fuch Sort as fecures against Cows, Oxen, Calves and fuch like Cattle, the Party or Horfes, &c. Parties trefpaffed upon fhall procure two able Men, of good Re- trefpaffing in port and Credit, to view and adjudge the Harms done; which fenced, &c. the Owner or Owners of the Beast or Beasts fhall fatisfy when known, upon reasonable Demand, whether the Beaft fhall 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 How to pro ufual Abode, before an Estimation be made thereof, to the End ceed, &c. he or they, or fome other Perfon 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 shall not approve thereof, he or they may repair to the Select-men, or fome of them, who fhall 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. Trefpaffes 17. And that when Damage is done to any Perfon or Perfons, done by mere if it appear to be done or happen by the meer Default of him or default, no them to whom the Damage is done, it shall be judged no Tref- damages, &c. to the faulty pafs, and no Damage shall be given. party, &c. the defendant 18. And be it further enacted, That when in any Action of Trefpafs brought before an Affiftant or Juftice of the Peace, the Defendant fhall juftify upon a Plea of Title, a Record fhall be made In action of thereof, and the Matter of Fact fhall be taken pro Confeffo, and trefpafs before the Party making fuch Plea fhall become bound with one or more justice, &c. if Sureties, by way of Recognizance, unto the adverse Party, in a fhall fet up ti reasonable Sum, not exceeding Sixty-feven Dollars, on Condition tle he shall that he fhall pursue his Plea, and bring forward a Suit for a Trial give bond, &c. of his Title at the next Inferior Court of Common Pleas to be and the cause. holden for the County in which fuch Trefpafs is alledged to be referred to the next county done; and and fatisfy all Damages and Cofts, as by the Court fhall be awarded against him; which Recognizance the faid Affiftant or Juftice is hereby empowered to require and take, and fhall be paid for the fame by the Recognizer and for recording pay Hhh court, &c, 426 If defendant fails, to pay treble dama gcs, &c. Defendant failing to give bond justice may proceed on the merits, Preamble. ken up on Trefpaffes. the Plea, his legal Fees; and alfo at the Charge of the fame Party fhall certify the Procels 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 fhall 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. 19. 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 Poffeffion, or other Title of the adverfe Party, Judgment fhall be rendered for the Party trefpaffed upon for treble Damages, and Coft of Suit. 20. But if the Defendant in Trefpafs, juftifying on Plea of Title, fhall refuse or neglect to become bound in Manner as aforefaid, then his Plea fhall abate; and the Juftico notwithstanding the fame, fhall proceed to try the Caufe, and upon due Proof of the Trefpafs committed by him, fhall award Damages again him according to what shall be made out, and Cost of Suit. 21. Whereas large Quantities of Logs and other Timber, Shingles and Staves are floated down Connecticut River, and in a fecret Manner are taken up and clandeftinely difpofed of, fo that it is very difficult in the common Courfe of the Law to prove the fame : fo that great Lofs and Damage thereby happens to the Owners thereof: Which to prevent; Be it enacted, That when any Perfon or Perfons fhall take up Logs, &c. ta- any Logs, Timber, Shingles or Staves, floating or floated down the faid River, the Logs and Timber being fairly marked, and Connecticut the Shingles and Staves bundled up, he fhall feize, bind, or well river to be fe- fecure the fame; and that within one Week next after his or cured, &c. Penalty for felling logs, &c. found floating, in Jefs than fix months. their taking up, ftopping and feizing the fame, enter the fame with the Kind, Bignefs, Length and Marks of the 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 first entering the fame; oi Penalty of forfeiting and paying to the Owner or Owners of fuch Logs, Timber, Shingles or Staves, viz. the Sum of One Dollar and Sixty-feven Cents for every Log or other Stick of Timber not exceeding thirty Feet in Length, and double the Value of fuch Shingles or Staves; and Thirty-four Dollars for every Log or other Stick of Timber which exceeds thirty Feet in Length,fecuring drifts And every Perfon or Perfons taking up, fafe fecuring, and entering any Logs, Timber, Shingles or Staves, fhall be entitled to a Fee of Twenty Cents, 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; Four Cents and Twe Mills whereof shall be allowed and paid to the Clerk for en Penalties. Reward for |