1. We have no doubt the court of common pleas had jurisdiction in the cause. The Rev. Sts. c. 105, § 8, provide that an action of trespass may be maintained, and direct how the proceeds of a judgment for the plaintiff, if any, shall be disposed of. The St. of 1853, c. 371, gives an action at law with equitable relief in the cases where by the previous statute the remedy was by bill in equity. It had no purpose to change the jurisdiction of the courts. This is made plain by a comparison of the provisions of the St. of 1853, c. 371, with those of the Rev. Sts. c. 81, § 8; c. 105, § 14.
2. The limitation of one year does not apply to the action. The case of Goodridge v. Rogers, 22 Pick. 495, is directly in point. That case was decided under the St. of 1788, c. 12, § 1. But we perceive no substantive difference in the provisions of that section from those of the Rev. Sts. c. 120, § 21.
3. But if the defendant was in the occupation of the estate as administrator, without objection from the other hens, and while in such occupation cut the timber for the cutting of which this action was brought, though liable to account for its value under the provisions of the Rev. Sts. c. 67, § 6, he would not be liable *340to treble damages under Rev. Sts. c. 105, § 7, as one entering upon the estate and committing waste without notice to the other heirs or persons interested therein. That statute is of a penal nature, and to be strictly construed.
The evidence offered by the defendant, of the nature of this occupation, should have been submitted to the jury. Having been excluded, the exception on this point must be sustained.