Proprietors of the Kennebeck Purchase v. Boulton

In trespass quare clausum fregit against several, where the evidence was of three distinct trespasses, each of which was committed jointly by some of the de fendants only, (all of them being on the close at the same time,) part of them were defaulted, and part pleaded not guilty; the damages for each trespass were rightly assessed jointly against those who jointly committed it; and the damages against the several trespassers were rightly assessed severally, n such case, costs are to be taxed jointly against all the defendants.

This was an action of trespass quare clausum fregit, in which the plaintiffs charged the defendants with breaking their close and cutting down their trees. [ * 420 ] * The three Boultons, with Savage and Cating, were defaulted; the other five defendants pleaded severally the general issue, which was joined by the plaintiffs. A jury was impannelled before the Chief Justice at the sittings after the last May term in this county, as well to assess the damages against the five defendants who had been defaulted, as to try the several issues. Upon the trial, there was evidence that all the defendants were at the same time on the plaintiffs’ close, cutting down their trees, and making them into shingles, which they carried away. But it appeared that the five defendants, who were defaulted, formed a company by themselves, and cut down the trees, and made and carried away the shingles for their own use, unconnected with any of the other defendants. It also appeared that the three Wards and Robinson formed another company by themselves, and the trees they cut down, and the shingles they made and carried away, were for their own use, unconnected with any of the other defendants. And it also appeared that Hammond was associated with a third party, he only of that party being sued, which third party cut down trees, and made and carried away their shingles for their own use, unconnected with any other of the defendants. On this evidence, a question was made at the trial, in what manner the damages ought to be assessed. The Chief Justice directed the jury that, if they were satisfied that all the defendants who had pleaded were guilty, they might assess joint damages against the five defendants who were defaulted, according to the injury they had done the plaintiffs; that they might assess joint damages also against the three Wards and Robinson, estimating the damages according to the injury the plaintiffs had received from them; and that they might assess several damages against Hammond, measuring them by the same rule. The jury found the defendants guilty, who had pleaded not guilty, and assessed the damages against all the defendants according to the direction given them by the judge. The defendants who had pleaded moved for a new trial, on account of this direction, to obtain the opinion of the whole Court as to the rule of assessing damages in this case. *The plaintiffs also, if the verdict should not be set [#421 ] aside, moved the Court to direct the clerk in what manner he should tax the cost.