
    The Inhabitants of Greenfield versus Polycarpus L. Cushman
    A deposition taken, in perpetuam rel memoriam,, cannot be used in the trial of an action commenced before the taking of such deposition.
    The offence, intended to be punished by the statute of 1793, c. 59, § 15, is the bringing of a poor person into a town, with intent to leave him there, a charge and burden on such town.
    This was an action of debt for a penalty of twenty pounds, for bringing one John Rowland, a pauper, into Greenfield, and leaving him there, contrary to the provision of the statute of 1793, c. 59, <§> 15.
    The cause was tried upon the general issue, before Putnam, J., at the last May term in the county of Franklin. The plaintiffs offered the deposition of the said Rowland, which was taken in perpetuam rel memoriam after the commencement of this action; Rowlana 
      being then sick, and dying soon after. The caption was in the form required by the statute. The deposition was objected to on the part of the defendant, because the action was pending at the time of taking it, and it ought therefore to have been taken and [ * 394 ] certified for the case. The defendant had notice * and attended the taking. The judge rejected the deposition.
    It was in evidence that Rowland came to the house of the defendant, who kept a tavern in Bernardston, a town adjoining to Greenfield, with an avowed design of going to the latter place, to obtain the medical aid of a Dr. Washburn, who had formerly administered to him ; and that he was then in feeble health. There was some discrepancy in the evidence touching the degree of the defendant’s agency in causing him to be carried from Bernardston to Greenfield; the, whole of which was left to the jury, with instructions to this effect: That it was incumbent on the plaintiffs to prove that the defendant knew that Rowland was poor and indigent; and that he carried him, or caused him to be carried,, to Greenfield-, with intent to impose a charge upon that town ; and that if, from the evidence, they believed that the defendant carried him, Or caused h .m to be carried, not with such intent, but with the intent to enable him to consult his former physician, and to be in a family in Greenfield,, where he had formerly resided, in such case the defendant would not be guilty of any offence.
    If the deposition rejected ought to have been received ; or if the direction in matter of law was wrong; the verdict, which was for the defendant, was to be set aside, and a new trial was to be granted. Otherwise judgment was to be rendered on the verdict.
    
      Wells, for the plaintiffs.
    
      Mills and Allen, for the defendant.
   Parker, C. J.,

delivered the opinion of the Court. The question respecting the deposition is important. It has frequently arisen at nisi prius, but has never been settled by the whole Court.

Upon a critical examination of the statute, which provides for the taking of depositions, and prescribes the manner of taking them , we are satisfied that a deposition taken pending an ac- [ * 395 ] tian, to remain in perpetuam rel * memoriam, cannot be used in the trial of that action. The first section of the statute authorizes the taking of depositions to be used in an action commenced, and prescribes with great particularity the form and manner. This differs essentially from the form and manner prescribed for taking depositions in perpetuam,, which are provided for in another and independent section of the statute. Now, if deposilions thus taken could be used in an action, pending when they were taken, there would have been no occasion for the former provision ; for this would apply to all cases.

There is also, in the fifth section, a provision for taking down by the clerk in writing the testimony of a witness, upon the suggestion of a party that the testimony may be lost on a future trial. This provision would have been wholly unnecessary, if depositions, in perpetuam, could be used in all cases.

As to the construction of the statute, upon which this action is brought, it must be reasonable : and it would not be so if it were held to exact a penalty for doing an act of humanity or common charity. Taking the whole statute together, we are fully satisfied that the offence intended to be punished, was that of bringing a poor person into a town, with intent to leave him there, a charge and burden upon such town. The point was properly left to the jury in the present case; and their verdict was founded upon the belief that the defendant had no such intent, and it was warranted by the evidence.

Judgment on the verdict. 
      
      
        Stat. 1797, c. 35.
     