HULIN against BILES.
The pen-uleact'oT 1741, for cu.i|e can-«niel”" tueoffence ííone!JÍ,iily
THIS was a warrant to recover the penalty of £i0, imP°sed by the Act of 1741, c.—, for inismarking one of the Plaintiff’s cattle. The Defendant insisted, by way of defence, that he had done it ignorantly; believing, at the t*me’ ^at the cow belonged to himself. And sundry witnesses were examined, to prove that not only the Defendant, but others, believed the cow belonged to him. *193There was evidence, on both sides, as to the identity of the cow.
His Honour who tried the cause, charged the jury, that the Defendant had incurred the penalty by misrnarking the cow, although he believed, at the time, that the cow belonged to himself.
The jury found for the Plaintiff? and a rule being moved for, that the Plaintiff show cause why a new trial should not be granted, on the ground of misdirection by the Court.
Seawell, J.
delivered the opinion of the Court:
From the whole complexion of the act, it is evident, that it was the fraudulent conduct of a party, the Legislature intended to punish. For this casé is connected with a case of stealing. The affair, therefore, which the Legislature intended to put down was, that of a wilful misrnarking, and we should be imputing to them a motive which nothing short of positive declaration could justify, were We to suppose they, in any case, intended to inflict a penalty upon an innocent man, who wa& acting honestly upon a total mistake as to facts.
The case of Smith v. Howard, decided by this Court, is an authority in point. Where it was held, that a purchaser of a slave brought into this State, if he was acting honestly and ignorant of that fact, was not liable to pay' the penalty.
New trial granted.