
    Theodore Reed versus Luther Davis et al.
    
    An action of debt lies to iccovcr the treble damages given by St. 1795, c. 75, § 3, for waste committed on land pending a suit for its recovery.
    The declaration in such an action, if the defendant was not a party to the suit for the land, must allege that he knew of the pendency of that suit when he committed the waste.
    The want of such an allegation is not cured by a verdict for the plaintiff, but is a good cause for arrest of judgment.
    A count in debt for cutting down and carrying away trees on land of which the plaintiff is lawful owner, and while he had a good and legal title thereto, without averring the pendency of any suit for the land, is bad.
    This was an a^iion of debt against Luther Davis and Jonathan Davis, in order to recover the treble damages given by the St. 1795, c. 75, § 3.
    The first count alleged, that the plaintiff Reed, on May 23, 1825, brought an action of ejectment against the defendant, Luther Davis, to recover a certain farm in Acton, in which suit Reed prevailed and recovered possession of the land ; yet the defendants, not regarding the statute, committed waste on the land during the pendency of the suit, by cutting wood and timber to the value of two hundred dollars, whereby, by force of the statute, an action had accrued to the plaintiff to recover of the defendants 600 dollars, being treble the value of the wood and timber. This count contained no allegation that Jonathan Davis knew of the bringing or of the pendency of the ejectment.
    The second count alleged, that Reed “ being the lawful owner of a certain messuage and lands,” in Acton, which are described, and while he “ had a good and legal title ” to them, the defendants, on divers days between May 23, 1825, and December 16, 1827, cut down and destroyed divers other trees growing on the land, to the value of 200 dollars, against the form of the statute.
    The third count alleged, that the defendants, after Reed had brought an ejectment against Luther Davis, “ for recovering possession of said messuage and lands,” and after the ser vice of the writ on Luther, and during the pendency of the suit, made strip and waste by cutting, felling, and destroying the wood, timber, trees, and poles, growing on the lands, to the value of 200 dollars, against the form of the statute, &c. claiming treble damages. This count contained no allegation that Jonathan Davis knew of the bringing, or of the pendency of the ejectment.
    A verdict having been found for the plaintiff, the defendants moved in arrest of judgment for the following causes.
    1. Because debt does not lie for the causes of action stated £ the declaration.
    2. Because the defendant, Jonathan Davis, was not a party to the action of ejectment, and the declaration does not aver that he knew of the bringing or pendency of that action, nor was there any evidence in the case that he knew of the bringing or pendency thereof.
    3. Because the second count contains no allegation of the pendency of any action at the time when the trespasses mentioned in that count were committed, yet the verdict gives treble damages for the trespasses alleged in all the counts, without any discrimination or deduction.
    
      
      Oct. 18th, 1828.
    
      Oct. 17th.
    
    4. Because the counts are misjoined.
    
      T. Fuller and Brooks, for the defendants,
    in support of the first exception, cited 1 Chit. PI. 101, 105; Peirce v. Spring, 15 Mass. R. 489; Bigelow v. Camb. and Cone. Tump. 7 Mass. R. 202.
    
    In support of the second exception they relied on the statute, 1795, c. 75, § 3 ; and also cited Anc. Charters, &c. 523.
    In support of the third and fourth exceptions they cited Brown v. Dixon, 1 T. R. 274; 1 Chit. Pl. 375; Com. Dig. Action, G 1; Mason v. Waite, 1 Pick. 452.
    
      Hoar and Keyes, for the plaintiff,
    as to the first exception, cited St. 1793, c. 43; St. 1817, c. 173; 5 Dane’s Abr. 245; Johns v. Carne, Cro. Eliz. 621; Com. Dig. Debt, A 1; Mitchell v. Walker, 5 T. R. 261; Soulsby v. Neving, 9 East, 310; Cross v. United States, 1 Gall. 26; United States v. Allen, 4 Day, 474.
    As to the second exception, the statute does not make it essential to maintaining this action, that the person sued should have known of the pendency of the suit for the land. But if this objection might have been made at any time, it comes too late after verdict, for this knowledge, if essential to maintaining the action, must have been proved at the trial. 6 Dane, 15, § 6; Ches'cr Glass Company v. Dewey, 16 Mass. R. 94; Colt v. Root, 17 Mass. R. 229; Benson v. Swift, 2 Mass. R. 52.
    As to the third exception, they cited Barnard v. Whiting, 7 Mass. R. 358.
   Parker C. J.

delivered the opinion of the Court. We think the form of action is right, notwithstanding debt generally lies only for a sum certain. By St. 1793, c. 43, the action of debt is given to recover all penalties and forfeitures, where no form of action is provided in the act creating the penalty ; and in the statute on which this action is brought, no form of action is given. In St. 1817, c. 173, the legislature have established debt as the proper form of action to recover a heavy penalty, uncertain until ascertained by verdict, and it is to be presumed from these acts of legislation, with a long interval between, that debt is thought to be the most proper action for breaches of statutes, notwithstanding the uncertainty in amount, of the penalty. And this conforms to the common law in regard to treble damages for not setting out tithes, as settled in Cro. Eliz. 621, and other cases cited by the plaintiff’s counsel. The case in 15 Mass. R. 489, does not contravene these, for it only decides that where no form of action is given, trespass may lie ; it having been there insisted that debt was the only action.

In regard to the objection, that the declaration is insufficient against Jonathan Davis, in not averring that he was party to the suit pending when the trespass was committed, or even that he knew of such suit, there is a difficulty ; for we can hardly suppose the legislature intended to punish so severely a trespasser who was wholly ignorant that any suit was pending ; and we do not think that such is the necessary meaning of the act. The intent of the legislature manifestly was, to punish those who, knowing of the pendency of a suit to recover the land, should voluntarily make strip and waste in order to avail themselves of the value of the trees and timber, before judgment should be rendered. The statute is highly penal, and should therefore be limited in its application, to the object the legislature had in view. If the intention had been to subject all trespassers, during the pendency of a suit, to treble damages, there would have been no cause for specifying those against whom the suit was brought, for the general terms would comprehend them. “ Such person in possession, or any other persons pending such action, and after the service of the writ therein,” evidently means those who act with or under the person in possession, knowing of the suit and the service of the writ; for with such knowledge they are in pari delicto with the principal or party in possession. But a day laborer hired to cut wood by the occupant of the land, having no reason to doubt his title, or the owner of the next adjoining lot, who, mistaking the bounds, commits a trespass, wholly ignorant of any suit, was not intended to be amerced in treble damages. We think therefore, that, for want of an averment that Jonathan Davis was a party >o the suit pending at the time of the trespass, or that he had knowledge of its existence, the declaration is bad, an(l judgment should be arrested.

The second count is undoubtedly bad, in not alleging any of the facts which entitle the plaintiff to the action under the statute. It is only averred, that while the title was in the plaintiff, the trespass was committed. This is the case of all trespasses ; for the possession of the plaintiff is title, so far as relates to this action of trespass. And there being no cause of action shown under the statute, the count is bad also at common law, for it does not aver, either directly or by implication, that the plaintiff was in possession of the close, either actual or constructive, when the supposed trespass was committed, but only that he was lawful owner thereof, and had title thereto ; which may well be, and yet he have no right to maintain trespass.

Judgment arrested. 
      
       The Revised Statutes give the action of trespass in such case. c. 105 § 9
     
      
       See Revised Stat. c. 105, § 9.
     