
    James Prescott versus Eliakim Tufts and Others.
    The treble damages given by the provincial act of 1 Geo. 2, c. 4, are to be sued for, in an action of trespass.
    When a count is struck out of a declaration by leave of the Court, the declaration must afterwards be considered as if the count struck out had never been introduced.
    This was an action of trespass, pending in the county of Middlesex, and was tried before the Chief Justice, at the sittings in Cambridge after the last October term.
    The declaration originally contained two counts. The first was trespass at common law, for pulling down an uninhabited house of the plaintiff’s. In the second count, for the same trespass, the plaintiff demanded treble damages on the provincial statute of 1 Geo. 2, c. 4.
    After the evidence was given to the jury, but before the cause was committed to them, the plaintiff, by leave of the Court, struck out his second count, the defendant objecting.
    The jury found a verdict for the plaintiff upon the first count; and the defendant moved to arrest the judgment, because the plaintiff had joined two counts, which by law could not be joined; he contending that the treble damages could be recovered only by an action of debt upon the statute.
    
      Bigelow for the plaintiff.
    
      Dana for the defendants.
   The action was continued nisi for the decision of this motion ; and now the opinion of the Court was delivered as follows by

Parsons, C. J.

The statute giving the treble damages originally demanded by the plaintiff in a second count, directs that they may be recovered after the same manner of * con- [ * 147 J viction, and by the same rules and methods, as are directed in the provincial statute of 12 Geo. c. 5. Looking into that statute, we find the manner of conviction there described is in cases where the defendant shall be charged in trespass. Trespass is therefore the proper action for recovering the treble damages here de manded, and the defendant’s objection is unsupported.

It is holden in some cases, where there is a misjoinder of action, a verdict of a jury, finding the issue for the defendant on the count misjoined, will not cure the declaration, so that the plaintiff can have judgment on the count, on which a verdict is found for him. Whether this is now law, it is not necessary to determine ; for we are satisfied that when a count is struck out of the declaration by leave of the Court, the declaration must afterwards be considered as if the count struck out had never been introduced. Judgment cannot be arrested.  