Boutelle v. Nourse

4 Mass. 431

Opinion

The opinion of the Court was afterwards delivered by

Parsons, C. J.

This action is debt qui tam on the fourth section of the statute of 1797, c. 70, against the defendant for taking, in Sebasticook River, 7200 alewives. The defendant pleads that he is not guilty, but with one Jedidiah Morrill; and that the plaintiff* had formerly impleaded the said Morrill for the same offence, had recovered judgment, and that judgment has been satisfied. To this bar there is a demurrer and joinder.

As the statute imposes a penalty for every alewive taken, to be paid by the offender, we are satisfied that but one penalty can be recovered for taking the same fish.

Although debt qui tam lies to recover the penalty, yet the debt arises from a trespass which in its nature is several, as well as joint. The action may therefore be sued against one or more of the joint offenders. But the plaintiff* can have but one satisfaction. It appears from the bar, which is confessed by the demurrer, that the plaintiff* has already received from Morrill a satisfaction for the penalty incurred by taking the same fish mentioned in his declaration. He cannot, therefore, recover a double satisfaction by maintaining the present action against Nourse.

* If several persons were fishing at the same time, each [ * 433 ] with his own net, and on his own separate account, they would be separately liable to the penalty, each one for the fish he caught, although they might afterwards agree to throw all the fish into one stock. But that is not the present case.

The plea in bar appears to us to be good, and the defendant must have judgment.