IN ERROR. THIS was a qui tam prosecution on the statute to prevent unseasonable night walking, and for punishing disorders committed in the night season,”(a) against Huntley and others, alleging that on the night of the 1st of January 1815, the defendants entered upon the complainant's land, and with force and arms, and against the peace, cut, girdled and destroyed forty-eight apple trees, and two pear trees, then and there growing, of the value of five hundred dollars, and…
Decided 1815-11-15
Swift, Ch. J.
¶1The question in this case is, whether a qui tam prosecution on the statute for punishing disorders committed in the night season is appealable from the county to the superior court ? The statute respecting appeals enacts, *393that in any action brought to, heard and tried by any county court, wherein the title of land is in question, or wherein the value of the debt, damage or matter in dispute shall exceed the value of seventy dollars, except it be on bond or note vouched by two witnesses, either party may appeal to the, superior court.(a) These words are sufficiently comprehensive to include every possible action that can be brought, by parties. The present case is an action wherein the dam age or matter in dispute exceeds the value of seventy dollars. It is unnecessary to decide whether this action he civil, criminal, or partaking of the nature of both ; for it can make no difference as to the right of appeal, it is, at any rate, an action between two parties, wherein the matter in dispute exceeds seventy dollars : it comes within the express words of the statute, and is appealable. Though there has been some doubt respecting the construction of this statute, some variety in the practice, and contradiction in the decisions ; yet it is too explicit to he misunderstood, and too imperative to be disobeyed. For this construction there is the strongest reason. It is inconsistent that in ordinary actions appeals should be allowed, and be prohibited in qui tam prosecutions on statutes, where the demand in damages may be equally important in point of sum, and the matter in dispute equally interesting in point of character.
¶2I would advise the superior court that there is error in the judgment complained of.
¶3In this opinion the other Judges severally concurred.
