
    Aaron Burnham versus Joseph Webster.
    Where the defendant pleads in abatement, the plaintiff demurs, and the detendant joins in demurrer: if before judgment he voluntarily pleads to the action, he shall be considered as waiving ms plea in abatement.
    The legislature have authority to regulate the taking of fish within the state, and to inflict penalties for a violation of their regulations.
    All acts for regulating the taking of fish are public statutes, and the Court must, ex officio, take notice of them.
    
      In an action qui tarn for taking fish, contrary to a statute, the plaintiff declared that the defendant on such a day, and on three other days and times between that day and such another day, took the fish, and he demanded four several penalties: verdict for one penalty, and held good.
    Such an action may be maintained against one or more offenders, without joining the rest
    The defendant was attached to answer to the plaintiff, one of the fish-wardens of the town of Scarborough, in this county, who sues as well for himself as for the poor of the said town, “ in a plea of debt, for that said * Joseph, at said Scar- [ * 267 J borough, on the first day of July last past, and on three other days and times between that day and the last day of said July, at the mouth of Little River, and in the sea, near the shore comprehended within the eastern and western boundary lines of said town of Scarborough, did, by means and use of a certain seine or drag-net, take and catch thirty fish called bass, of the value of ten dollars, against the form of the statute in such cases made and provided; oy force whereof the said Joseph hath forfeited for each and every of said offences, the sum of fifteen dollars, amounting in all to sixty dollars; and an action hath accrued to the plaintiff to sue for and recover the same as aforesaid, to be disposed of according to law ■ Yet though requested,” &c.
    At the Court below, the defendant filed a plea in abatement, in which he alleged that the forfeiture or debt mentioned in the declaration, if any such had accrued to the plaintiff, did accrue and was owing from the defendant and eight other persons (naming them) ; and because the said other persons were not included in the writ and declaration, he prayed judgment of the writ. To this plea there was a general demurrer and joinder, but no judgment was rendered on the plea. The defendant went on and pleaded nil debet to the action. To this latter plea there was also a demurrer, with a reservation to waive it and join the issue tendered on the appeal. Judgment on this demurrer was given for the defendant. On the appeal, the plaintiff waived his demurrer, and joined the issue. And on trial of this issue at the last October term in this county, a verdict was found for the plaintiff for fifteen dollars.
    After the verdict, the defendant moved in arrest of judgment for the following causes:—
    1. Because it does not appear that any judgment was given by the Court below, on the plea in abatement, although an issue in law was joined thereon.
    * 2. Because the action is not maintainable, as every [ * 268 ] citizen of the commonwealth of common right has the privilege of taking every kind of fish in the sea, in such manner aa he pleases; and if any statute has been, or shall be made in derogation of this right, the common law will control it.
    3. Because the statute on which the action is brought, entitled an act for the preservation of the fish called bass, in Dunston river,
    in Scarborough, in the county of Cumberlandbeing a private statute, ought to have been set forth in the plaintiff’s declaration, or so much thereof, that the .Court might judge of it, and determine whether the plaintiff had pursued the same.
    4. Because the plaintiff has declared for four different penalties, at different times, in the same count, when there ought to have been four different counts in the declaration for the said penalties; and no day in particular is mentioned when three of the said penalties were incurred.
    5. Because it appears from the pleadings in the case that the debt was incurred, if any were incurred, by the defendant jointly with other persons, who ought to have been joined in the action.
   The cause stood continued upon this motion to the present term; and now King, of counsel for the defendant, enforced the causes of arresting the judgment, and was answered by Mellen for the plaintiff, after which the opinion of the Court was delivered by

Parsons, C. J.

As to the first objection, the defendant was not obliged, after pleading this plea in abatement, to answer further, without a judgment of respondeas ouster. But without any such judgment, he voluntarily pleaded to the action, and on demurrer to his plea, he prayed judgment in chief, and it was rendered for him. This we are satisfied amounts to a waiver of his plea in abatement, which must now be considered as if it had not been filed. [ * 269 ] * There is no weight in the second objection. That part of the sea, in which the fish were taken, was within the town of Scarborough. And the legislature may unquestionably regulate the taking of fish within the state, and oblige all the citizens to conform to the regulations, by inflicting penalties for the violation of them .

Neither can the next objection prevail. We are of opinion that the statute referred to is a public statute. It is obligatory on all the citizens, and they must notice it at their peril. We must, therefore, ex officio, take notice of it. Indeed, all the laws regulating the taking of fish are made for the public benefit, to preserve the fish, and are public statutes.

Had the fourth exception been taken on demurrer, it might have prevailed. But as one offence is properly laid, and the jury have found but one penalty forfeited, we must, after verdict, presume that the jury have convicted the defendant of the offence rightly laid, and that the judge did not permit evidence of any other of-fence to be given. This is settled law in trespass, where several trespasses are laid to be committed at divers days and times between two certain days, where, from the generality of the verdict of guilty, it is not certain but the jury might have found the defendant guilty of, and assessed damages for all the trespasses. But a fortiori judgment ought not to be arrested in this case; for the jury cannot be presumed to have found the defendant guilty of more than one offence.

The truth of the allegation, on which the last exception is predicated, does not appear on the record. The plea in abatement making it, we consider as waived; and if it was not, no resort to it could be had on a motion to arrest judgment, where the allegations of the plea are a cause only of abatement.

As a matter of practice, we have considered this point; and we ■are satisfied that the plea would not have been sufficient to abate the writ. When an offence created by statute may be committed by one alone, but in fact is * committed by [*270 ] several, the offence is not in the nature of a joint contract, but of a trespass, although the penalty be sued for in a qui tam action of debt or information.

In an information against several defendants, the plea is that they are, and each of them is not guilty. And in an action of debt qui tam, not guilty is also a good plea. But if debt qui tam be sued against several, demanding a joint forfeiture, on a plea of nil debet, all the defendants ought to be found indebted, because the form of the action and plea is on a joint contract, although the debt arises from a tort. But unquestionably the action might have been sued against any one or more of the defendants; for the tort being several as well as joint, the debt may follow the nature of the tort on which it is founded. The exception to this rule arises from the nature of the offence. As when the offence created by a statute is the making of a contract prohibited by it, the contract must be charged and proved according to the truth of the case. For if it be proved to be different from the contract alleged, they cannot be presumed to be the same contracts .

The plaintiff must have judgment on the verdict to recover the penalty of fifteen dollars, with full costs; for although the action be in its form on a contract, yet it is not a simple contract within the statute of 1803, c. 154. § 5 .

Judgment on the verdict. 
      
      
         Nickerson vs. Brackett, 10 Mass. 212.
     
      
       2 Hawk. P. C. c. 26. § 75.
     
      
      
         Patten & al. vs. Gurney & al. 1 Pick. 182. — Boutelle vs. Nourse, 4 Mass. 431.— Hill vs. Davis, 4 Mass. 137.
     