
    The Inhabitants of Deerfield versus Delano
    An overseer of the poor of one town employed an agent to carry a poor and indigent person to another town on the direct road towards the place to which such poor person was travelling, but the agent carried him to a different town. Held, that the overseer might lawfully endeavour to avoid a charge upon his own town by helping such person on his journey; that whether he intended to do this, or to throw the expenses of supporting such person on another town, contrary to SL 1793, c. 59, § 15, was a question for the jury; and that his intention being found to be innocent, the deviation from his orders did not subject him to the penalty of that section.
    This was an action of debt upon the St. 1793, c. 59, § 15, which provides, that if any person shall bring and leave any poor and indigent person in any town or district, wherein such pauper is not lawfully settled, knowing him to be poor and indigent, he shall forfeit twenty pounds, to be sued for, and recovered by, and to the use of such town or district
    
      A man and woman, mentioned in the declaration, had been travelling from the State of Pennsylvania on their way to Chesterfield, in New Hampshire, where one of them had relations, and they had for some weeks immediately before the time when the penalty was said to have been incurred been supported as paupers by the town of Northampton. After leaving Northampton and travelling about three miles on foot, they had been supported by charity, and transported from place to place, until they arrived in Sunderland. They here applied to the defendant, as an overseer of the poor, for assistance. The defendant endeavoured to induce them to leave the town, and told them that he had no accommodations for them, but that there was a poorhouse at Deerfield, and that Deerfield was on the road to Chesterfield, and that if they would go there, he would pay their toll across Sunderland bridge. They declined on account of the inclemency of the weather and their feeble health. The defendant went to the store of another overseer and said, “ that he must see him on this business ; that these people had been tucked on to them, and that they must get rid of them.”
    The defendant then engaged one Saunderson to take them to Montague, which is on the direct road to Chesterfield, and there leave them. After they had got into the sleigh, which they at first declined doing, the woman cried, and complained of the cold, and Saunderson being induced by the consideration that Deerfield was nearer than Montague, carried them into that town, and, arriving opposite to a tavern, directed them to go in while he turned his horse under the shed, and said that he would himself come in and speak a good word for them. He did not, however, go in, but immediately returned to Sunderland. Deerfield was not on the direct road to Chesterfield.
    Saunderson testified that he had no instruction from the defendant to take the paupers to any other place than Montague ; and that, some time after he had left them in Deerfield, and after the plaintiffs had threatened to bring this action, he informed the defendant of what he had done, and that the defendant did not approve of it, and said he would not pay him for removing the paupers ; and that he never had been paid for it.
    
      
      Wilde J., before whom the cause was tried, instructed 'the jury that the defendant had not incurred the penalty, unless he had caused the paupers to be removed for the purpose of charging Deerfield, or some other town, with the expense of supporting them ; and that if he intended only to help them on their journey, and had good reason to suppose that they would find other help on the way, so as to enable them to reach their friends in Chesterfield, he would not incur the penalty bj directing Saunderson to remove them to Montague ;. and further, that if the defendant directed Saunderson to carry them to Montague because it was on the direct road to Ches terfield, and because he thought he had a right to help them on their journey, though not to carry them to any town out of the direct road, and that for this reason he never consented to their removal to Deerfield, and never approved of it afterwards, in such case Saunderson could not be considered as his agent in removing them to Deerfield ; but that if the defendant employed Saunderson to transport the paupers out of Sunderland, and'leave them in another town, without designating the particular town, but with the intent generally to charge some other town with their support, in such case he would be liable in this action.
    The jury found a verdict for the defendant. If the foregoing instructions were incorrect, a new trial was to be granted
    
      Wells, for the plaintiffs.
    The statute is imperative, that poor persons shall be supported in the town where they first fall into distress, and a penalty is provided to prevent overseers from removing them into other towns ; for the compensation for supporting them is so small, (St. 1821, c. 20 ; St. 1821, c. 94, § 3,) that it is obviously for the interest of a town to remove rather than to support them ; and men will do things as agents for a public corporation which they would not as individuals. The statute is not a penal but a remedial one ; Jac. Law Diet. tit. Limitation of Actions, II. 2 ; Woodgate v. Knatchbull, 2 D. & E. 148 ; Greetham v. Theale, 3 Burr. 1723 ; Ward v. Snell, 1 H. Bl. 10 ; Wynne v. Middleton, 1 Wils. 125 and is to be construed accordingly. In this view the construe tian of the judge was incorrect.
    It was the intention of the defendant to have the paupers left in Montague, there to take their chance. If they bad been left there, the penalty would have been incurred. ■ The defendant could not suppose that they would be helped on their journey, except on the ground that the overseers of that town would be influenced by the same selfish motives as himself, and so would help them on. This was the mischief intended to be guarded against; and if one town may help on a pauper, thinking that the next town will do the same, the statute will in fact be repealed. If any one brings a poor and indigent person into a town and leaves him there, the conclusion of law is, that such person is left to be there supported.
    In case the command of the defendant to Saunderson had been a legal one, he would notwithstanding be answerable ; for a master is liable for every act of his servant done by him in the course of his employment. Per Ashhurst J. in Woodgate v. Knatchbull, before cited ; Bush v. Steinman, 1 B. & P. 404. But here the command was illegal, and Saunderson vnis assisting the defendant in an unlawful act. In such cases the employer is always liable, if the unlawful act is done in effecting the object commanded. If a master commands a servant to commit one felony, and the servant in so doing commits another, the master is answerable. If a master commands his servant to remove a dead carcass, which is a nuisance, and put it on B.’s land, and the servant puts it on C.’s, the master is liable, the object being answered, which was to get rid of the nuisance.
    Newcomb, for the defendant,
    contended that the statute was a penal one ; that the question of intention was properly left to the jury ; Greenfield v. Cushman, 16 Mass. Rep. 393; and the jury had found that the defendant did not remove the paupers with an intent to throw the burden of their support on another town ; that the defendant had not ratified the conduct of Saunderson, but on the contrary had expressly disapproved of it; that the principle of law, that an agent cannot bind his constituent beyond the authority given, should not be departed from when a penal statute was in question ; and that the defendant had in fact given no illegal command.
    Wells, in reply,
    said that the jury had not negatived the fraud-
    ulent intent in the defendant, for it did not appear whether they had found a verdict in his favor on the ground that he intended t0 ass¡st the paupers on their journey, or on the ground that the agent did not pursue his instructions. If the direction of the judge was wrong on either point, a new trial must be grant ed. It is by no means admitted that the defendant did not ratify the doings of his agent; but, on the contrary, we contend that he did.
   Parker C. J.

delivered the opinion of the Court. A verdict was returned for the defendant on instructions from the judge in matter of law, which are complained of as erroneous.

The first branch of the instructions involved the principle, that it was necessary, in order to make a person liable to the penalty, that the act of bringing the pauper within the town must be with intent to put the town, or some other town, to the expense of maintaining or relieving the pauper. By the terms of the statute such intention is not expressly made an ingredient of the offence, but attributing to the legislature who enacted it a knowledge of the common principles of justice, and a design to be governed by them, it is impossible to impute to them an intent to fix a penalty upon the subject, for an act which may not only be free from any moral turpitude, but may be the result of a strong sense of moral and social duty. To help the wayfaring man on the road, and especially the poor and miserable, could never be deemed worthy of punishment. There must be some culpable intention, to give such an act the character of a crime. And so it was decided in the case of Greenfield v. Cushman, 16 Mass. Rep. 393. We think it immaterial, whether the statute is to be considered technically penal or remedial, as in either case the meaning and intent of the legislature would be a necessary source of construction. Whether the evidence in the case would have justified the jury in imputing such intent to the defendant in the present instance, is not a question before us, as the. verdict is not objected to or the ground that it is against evidence.

The other branch of the instructions complained of is, tho if Saunderson, who conveyed the paupers to Deerfield, was ordered by the defendant to take them to Montague with a view to help them on their way to Chesterfield, whither they were desirous of going, the defendant was not liable to the penalty, although Saunderson might have left them in Deerfield with a view to subject'that town to expense. And we think this was clearly right. It was an innocent act in an overseer of Sunderland to endeavour to avoid a charge upon his town, by aiding the paupers on their journey to Chesterfield in another State, and a deviation from these orders by the agent employed would subject the agent to a penalty, but not the constituent, it being a principle that masters are not answerable criminaliter, whatever they may be civiliter, for the unauthorized acts of their servants.

Judgment according to the verdict 
      
      
         Sanford v. Emery, 2 Greenl. 5.
     