If it must be assumed that the question to which objection was taken informed the jury of a fact irrelevant upon any issue in the case, nevertheless, the plaintiffs having restored to the trial the fairness of which they had divested it and having made it appear affirmatively that the jury were not influenced by the unwarranted statement, the exception must be overruled. Pritchard v. Austin, 69 N.H. 367, 369; Furnald v. Burbank,67 N.H. 595; Bullard v. Railroad, 64 N.H. 27, 32.
The defendant's contract with the state, evidenced by his bond, was that in case in the exercise of his license liquor should be sold to an intoxicated person, he would pay the state the damages thereby occasioned, even if the sale were made by one of his servants without his knowledge and against his express command. State v. Corron, 73 N.H. 434, 446, 450, 454. As the object of the bond is the protection of the state and not the punishment of the licensee (State v. Corron, supra), the material question is whether that has been done which the bond stipulated should not be done. Since good faith in the defendant would not protect the state from loss, the contract cannot be construed in accordance with the requested instruction without destroying the purpose of the bond. The absence of express terms limiting the defendant's covenant to ordinary care in the exercise of the privileges conferred by the license, and the general purpose of the bond, establish that no such limitation was intended. If the breach relied upon had been the defendant's failure to exercise the care of a reasonably prudent man to prevent sales to persons in a state of intoxication, the requested instruction would have been proper; but as the terms of the contract were that no liquor should be sold such a person, and the breach alleged was such a sale, the instruction was properly refused.
In a criminal proceeding the weight of authority seems to sustain
the proposition, that when in the exercise of the police power an act is prohibited, the intent with which the act is done is not material unless made so by the terms of the prohibiting act. State v. Campbell,64 N.H. 402; Commonwealth v. Julius, 143 Mass. 132; note to Farrell v. State (32 Ohio St. 456), 30 Am. Rep. 617. But that question is not now presented. There may be cases where the state in good conscience ought not to exact the letter of the bond. Whether that should be done or not, the attorney-general determines. State v. Brown, 60 N.H. 205, 207. As the case before the court is here presented, there is no suggestion of any ground upon which he could properly decline to take judgment.
Exceptions overruled.
All concurred.