
    Baker & Walling, Overseers of the Poor, against Richardson—Certiorari, from a Justice’s Court.
    
    Whether a contract to sell five gallons of spiritous liquor, to be taken away in small quantities, at the pleasure of the purchaser, the. seller having no license, is a violation of the excise law, depends upon the question whether the seller’s intention be fair, or a mere evasion of the statute. This question is proper for the jury, with whose verdict the court will not interfere.
    Debt, (under Stat. sess. 24, ch. 164, s. 7, 1 R. L. 178, and Sess. 43, ch. 37, s. 1,) for selling whiskey in a quantity less than five gallons, without license, brought by Baker fy Walling against Richardson, a distiller; who on being applied to at his distillery, by three persons severally, at different times, to purchase whiskey, replied, that as he had no license, he could not sell less than five gallons; which he agreed to sell to them, informing them that they might take it away as they pleased. The whiskey had not been paid for, and only part taken away, in quantities of a few quarts at a time. Verdict and judgment for defendant.
   Curia.

The only question was, whether these transactions were fair, or intended as mere evasions of the statute. Whether the verdict was such as we should have given, is not the point of inquiry. The question belonged to the jury, who have decided it in favour of the defendant, and the Court will not, in such a case, set aside the verdict.

Judgment affirmed. 
      
       This is a question frequently to be decided under penal statutes1, though not so often under any other, perhaps, as under the statute of usury. Vid. the illustrations of this, in Ord on Usury, 64 to 90. How far innocence of intention will excuse, where an offender is brought plainly within the terms of a penal law, vid. a very valuable note by Mr. Anthon, to his N. P. Reports, 154. Sturges v, Maitland, n. a.
     
      
      i) Nor will this be done in a penal actiqn, where it is clearly against the weight of evidence, if in favour of the defendant. (Comfort v. Thompson, 10 John. 101.)
     