delivered the opinion of the Court as follows,at the succeeding term in Cumberland.
The question is whether, upon the facts reported in this case, the defendant is to be considered as having incurred the penalty demanded.
In cases of this nature, where there is contradictory testimony as to the motives by which a defendant is actuated, it is proper that the whole should be submitted to the consideration of the jury. But where there is no proof, except what is offered by the plaintiffs, and that is insufficient to justify a verdict in his favor, and in fact furnishes a legal defence, it is always proper to direct a nonsuit.
On examining the facts before us, we think the action cannot be maintained. For although the 22d section of the act of 1821, ch. 122, (being a revision of the statute of Massachusetts, on which this action is founded,) is silent as to the motive with which a person may carry a pauper into a town in which he has not a legal settlement and there leave him; still the unlawfulness of the intention is the essence of the act and gives it the character of an offence against the statute. — On this principle it has often been decided in actions brought to recover a penalty for sawing or disposing of mill logs belonging to the plaintiff; that the penalty was not incurred, if the' defendant took and carried away the logs, really believing them to be his own. Such belief negatived the idea of fraud, or any criminality of intention.— This principle is in accordance with the decision in the case of Greenfield v. Cushman, 16 Mass. 393. — In that case the Court sanctioned the instructions which the presiding Judge had giv* *8en £o the jury. — These instructions were “ that it was incurrí- “ bent on the plaintiffs to prove that the defendant knew that “ Rowland was poor and indigent; and that he carried or caus- “ ed him to be carried to Greenfield with intent to impose a “ charge upon that town.” — In the case before us it appears from the plaintiffs’ own testimony (and there was no other,) that the defendant, under a belief that the pauper had a legal settlement in Sanford, carried her to and left her at the house of one Allen, in that town by his express permission. — It is true he was told by Allen, before he left the pauper at his house, that he had been misinformed as to her having been boarded at his house by the town of Sanford,; still it further appears that Allen never made any charge against Sanford, or any other town, for her support in his family, prior to that time; and he declared he never intended to make any charge on that account. — This proof negatives the idea of an intention to impose a charge upon Sanford; and it also shews the irrelevancy of the proof offered, and rejected by the Court, to shew that she after wards he-came chargeable.
For these reasons we are satisfied that the nonsuit was proper and ought to be confirmed.
Motion to set aside the nonsuit overruled — and judgment entered for the defendant.