2 Me. 5 | Me. | 1822
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*
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.