¶1We think the Court below, according to the bill of exceptions, erred; but we are clearly of opinion, on the whole record, that the defendant is entitled to judgment. The act relative to the duties and privileges of towns (sess. 36. ch. 25. s. 12.) does not authorise a penalty to be imposed by the town on any person, as a trespasser. The powers there given extend only to regulations for the enjoyment of their common lands, as between those who have a right to enjoy them.as commons. Here the declaration charges the defendant to be a trespasser; and the town meeting have voted a penalty against a stranger, (having no right, as they say,) for trespassing on their land. This cannot be the true construction of the statute. The legislature never in-, tended to delegate to any persons or body corporate the power of imposing penalties for injuries to their own lands by trespassers. If this be a trespass, the town must pursue the common law remedy for damages. The judgment of the Court below must, therefore, be affirmed.
¶2Judgment affirmed.