¶1The opinion of the court was delivered by
¶2It is undoubtedly a well settled principle of law, that all who unite in, or aid and assist, or participate, or act in concert in committing a trespass, or a series of trespasses, may be sued jointly and a recovery may be had against them. If the injury, of which the plaintiff complains in his declaration, is but a single act of trespass, then all, who participated in the act, are equally liable. The court below seem to have considered, that the injury is to be regarded as but one trespass, and that the plaintiff had so treated it in his declaration ; for they instruct the jury, “ that the plaintiff had declared for the taking of all the hay as one trespass.’1 But we think, that, whether the injury, for which the plaintiff seeks to recover, is a single act of trespass, or consists of several distinct trespasses, is to be determined by the testimony put into the case, and not by the declaration. It is, however, true, that, where the plaintiff declares for a single trespass, he must necessarily be restricted in his proof and recovery to one act of trespass.
¶3But is it true, that the plaintiff has declared “ for the taking of all the hay as one trespass 1” If so, he has adopted an unusual and unnecessary phraseology in his declaration. We apprehend, that the county court mistook the character of the plaintiff’s declaration. It was evidently drawn with a view to enable him to give evidence of as many distinct acts of trespass, within the period limited in the declaration, as he might be able to prove, and thereby save himself the necessity of framing a distinct count for each distinct act of *363trespass. Indeed, the form of declaration adopted in this case is treated in the books as containing as many counts, as the plaintiff should prove acts of trespass committed within the period of time stated in the declaration. Pierce v. Perkins, 16 Mass. 471, and note and cases there cited.
¶4On recurring to the bill of exceptions, it appears that the taking of the hay was not all at one time, but on different days, covering a period of a month, or more. It was not, therefore, a single act of trespass, but several distinct trespasses. These several trespasses, however, were properly received in evidence under the declaration, and the plaintiff was entitled to recover for them against all the defendants, provided they participated in the several trespasses. But the testimony tended to prove, that Lamberton, one of the defendants, -had no agency, or participation in the taking of a considerable portion of the plaintiff’s hay, and yet the court instructed the jury, “ that they might find all the defendants guilty, who assisted in taking all or any part of the hay.”
¶5In this direction to the jury the court below manifestly erred, and for this cause the judgment of the county court is reversed.