This сause is brought under R. S., Chap. 97, Sec. 5, which provides, so far as is necessary to state here, that if a tenant in common of undivided lands cuts down or carries away timber or wood, without first giving thirty days written notice to his co-tenants, he shall forfeit three times the amount of damages; also that any one or more of the co-tenants without naming the others may sue for and recover their proportion of such damages. Jоseph Hall, dying in 1895, left five sons, of whom the plaintiffs are two and the defendant is one. Fred F. Hall was then a minor, and by his father’s will was to have a living on the place until he should become twenty-one years old, which would be on July 1,1908. The land upon which the cutting was done came, we assume, from their father, and was undivided and owned by them in common. The defendant cut wood and timber on the premises both before and after Fred F. Hall became twenty-one years old, the latest cutting being in 1910. He gave no written notice as the statute requires. In 1912 Newton A. Hall conveyed his interest in the land, and assigned his claim for the cutting, to his brother, Fred F. Hall. This suit was brought September 15, 1913, in the names of Fred and Newton jointly to recover two-fifths of the damages. The defendant pleaded the general issue and the statute of limitations; nothing else. The trial resulted in a verdict for the рlaintiff, and the case comes up on the defendant’s exceptions.
I. The first question presented relates to the statute of limitations. The defendant relies on the special statute, R. S., Chap. 83, Sec. 97, which provides that, “Actions and suits for any penalty or forfeiture on а penal statute, brought by a person to whom the penalty or forfeiture is given in whole or in part, shall be commenced within one year after the commission of the offense; and if no person
This question has been several times adjudicated by this court, in construing statutes essentiаlly like this one, in that they authorized the recovery of double, treble or quadruple damages for acts forbidden by statute. In Palmer v. York Bank, 18 Maine, 166, the cоurt said, “As it (the statute then under consideration) gives four times as much damage as is allowed by law for the detention of the other debts, it is certаinly penal in character. But as it is given to the party injured, who seeks the recovery of a just debt, to which these increased damagеs are an incident, we are not satisfied that it is to be regarded properly as a penal action. In Frohock v. Pattee, 38 Maine, 103, an action under a statute to recover double damages for knowingly aiding a debtor in the fraudulent transfer or concealment of his property, the sаme special statute of limitations was set up in defense as has been in this case. The court, holding the double damage statute be tо remedial and not penal, said that under R. S., 1841, Chap. 146, Secs. 15 and 16, which are now R. S., 1903, Chap. 83, Sec. 97, being the special statute of limitations invoked in this case, only such statutes were to be considered penal statutes as would authorize the commencement of a suit, indictment or information in the name and for the use of the State, and that the double damage statute was not such a statute. In Black v. Mace, 66 Maine, 49, it was held that a stаtute, R. S., Chap. 97, Sec. 11, giving treble damages for trespassing upon grass lands, was remedial and not penal. Quimby v. Carter, 20 Maine, 218; Philbrook v. Handley, 27 Maine, 53; Thatcher v. Jones, 31 Maine, 528; Reed v. Northfield,
II. In the next plaсe, the defendant contended that a recovery could not be had of Newton A. Hall’s one-fifth. This contention was overruled, and properly. Newton A. Hall, before suit was brought, assigned his claim to the other plaintiff, and the only contention is that a copy of the assignment should have been filed with the writ under the provisions of R. S., Chap. 84, Sec. 146, which was not done. At common law an assignee of a chose ifi actiоn was obliged to sue in the name of the assignor. The statute in question permits an assignee to sue in his own name, but provides that in such case he must file with the writ the assignment of a copy thereof. Notwithstanding the statute, an assignor if he chooses may still sue in the assignor’s name, and if he doеs so, he is not required to file a copy of the assignment. Rogers v. Brown, 103 Maine, 478.
III. The defendant did not plead justification or license, but he offered to show in еvidence that his operations had been in accordance with a mutual understanding between him and the plaintiffs, which would be of coursе by license or permission. The evidence was excluded on the ground that this defense had not been pleaded. The exclusion was right. Thе rule is without exception, we think, that when a defendant would justify or excuse an act which is unlawful unless justified or excused, he must plead the justification. Daggett v. Adams, 1 Maine, 198; Rawson v. Morse,
V. The dеfendant was asked by his counsel whether he and his brother Fred, the plaintiff, had hired money for the benefit of the place. The answer was properly excluded, as irrelevant and immaterial.
We have examined the other suggestions made by counsel, but find no merit in them. No error appearing, the entry will be,
Exceptions overruled.