
    William Lawrence versus Mariner Small.
    To recover of the master of a vessel the penalty provided by K. S. of 1841, e. 32, § 66, for neglecting to give bonds, “before passengers shall come on shore,” who have no residence in the State, it must appear that there had been an actual landing of such passengers.
    This case was presented on exceptions 'to the ruling of Eice, J., directing a nonsuit upon the facts as they were proved by the evidence offered by the plaintiff. The alleged unlawful landing of the passengers was claimed to have been at Eastport.
    The exceptions were argued by
    
      Dyer, for the plaintiff, and by
    
      Hayden, for the defendant.
   The facts, material to an understanding of the question of law decided in the case, appear from the opinion of the Court, which was drawn up by

Appleton, J.

This is an action brought to recover the penalty provided by E. S., 1841, c. 32, § 56.

The section upon which the action is founded is in these words: — “When any ship or vessel having any passengers on board, who have no settlement within this State, shall arrive at any port or harbor within the State, the master of such ship or vessel, before such passengers come on shore, shall leave a list of their names, and the places where said passengers first embarked on board such ship or vessel, with the overseers of the poor, where such passengers shall arrive. The master of such ship or vessel shall not land any such person without the permission of the selectmen, unless he shall have entered into bond to such town, with sufficient sureties, to the satisfaction of said selectmen, in a sum not exceeding five hundred dollars for each passenger, to save such town and all towns within the State from all manner of charge and expense, which may arise' from such passengers as paupers ; for and during the term of three years. Eor any neglect of the provisions of this section, said master shall forfeit and pay two hundred dollars for each, passenger so coming on shore or landed; to be recovered by an action of debt, by any person who shall sue for the same, one moiety thereof to the use of the State, and the other moiety to the prosecutor,” Ac., &c.

It appeared in proof, that the Admiral, a British steamer, of which the defendant was master, arrived at Eastport on June 20th, 1851, having on board as passengers Elizabeth Boach and her children, who were foreigners, having no settlement in this State. They were on their way to Calais. At the arrival of the Admiral, they went on board the steamer for Calais from the Admiral without going on shore at East-port, or elsewhere, till they arrived at the termination of their journey. The defendant left no list of the passengers with the overseers of the poor, and gave no bond to the town of Eastport.

The presiding Judge, upon proof of these facts, ordered a nonsuit, and we think correctly. The list required by § 56, is to be left “ before such passengers come on shore.” But the passengers in question did not come on shore. The list is not required unless passengers are to be landed, and before their coming on shore.

Unless the master gives the required bond, he is prohibited from landing his passengers without the permission of the selectmen.” But if the passengers are not landed, the permission to land is unnecessary, and there is no bond to be given. The giving of the bond, or the obtaining permission to land, is preliminary to landing. But when there is no landing in fact, there is no occasion for either.

That an actual landing is contemplated, seems apparent from § 56, as well as from § 58, by which visiting officers are authorized to prevent the landing of any such passengers,” and by § 59, by which a penalty is imposed where passengers are landed at any other place than that to which the ship or vessel is destined, for the purpose of evading the provisions of the statute. Nonsuit confirmed.

Tenney, C. J., Bice, Cutting, Davis and Kent, JJ., concurred.  