*

not go

1801. fo the evidence is the ground of the adjudication, and the latter can. further than the evidence warrants. And though it was faid The KING in R. v. Crowther (a), that it had been no where directly decided against *that the evidence fhould negative every particular qualification; STONE. yet that was not the point in judgment; and at leaft that imports [643] that there must be fome general evidence of difqualification to put the party accused on his defence. But here there is not even general evidence. In R. v. Wheatman (b), where the qualifications were negatived by the evidence, but not in the information, Afbhurt J. faid, that the evidence must prove, but could not fupply any defect in the information. And in the precedent in Burn (c), the evidence negatives every particular qualification. And that form was agreed to be fuftained in R. v. Thompson (d), and R. v. Hartley (e), there cited; though the Court in other refpects did not approve of it.

Lord KENYON C. J. referred to a MS. note of The King v. Jar[644] vis (f), which was taken by the late Lord Ashburton, when at

the

(c) 2 Burn's Justice. tit. Game, Cald 175.

(a) 1 Term Rep. 125-7. (b) Doug. 345. (d) 2 Term Rep. 18. (e) E. 22 Ges. 3. (f) REX v. MORICE JARVIS, Hil term 30 Geo. 2.-This was a conviction against the defendant upon the game laws. The conviction fets forth, that on 12th October 1754) at Hillerton in the county of Wilts, A. B. came before the juftices convicting and made information, that the defendant within 3 months, at the parish of H. in the faid county, had and used a setting dog and fetting net, be not being then qualified by the laws of this realm to keep and ufe, &c. to kill game. The conviction further fets forth that Webbe, a credible witness, came to the place aforefaid and made oath, that, &c. (in the words of the information). It then states, that defendant having been fummoned and appearing before the justices at Devizes in the faid county, and the evidence being read to him; and he being asked what he had to fay for himself, and faying nothing except denying the fact; therefore the juftices adjudged that the defendant was not any wife qualified, empowered, li cenfed, or authorised to kill and destroy game, or to keep and ufe dogs and nets to kill and deftroy the game, and adjudge him guilty of the offence, and to forfeit the fum of 5This conviction being brought up by certiorari and put in the paper, and coming on now to be argued,

Mr. Gould against the conviction, objected 1ft, The juftices have not fhewn that they have a jurifdiction; because they have not flated precifely that Jarvis had no qualification. The witness fwears generally that the defendant was not qualified to kill game that is not fufficient; but every qualification mentioned in the ftat. 22 & 23 Car. 2. ought to be fet forth; and the defendant should be adjudged to have none of them: indeed other fubfequent qualifications (as being lord of a manor, &c. which is an implied qualification by a latter ftatute) need not be fet forth. Rex v. Hill, 1 Lord Ray. 1415. In Bluet q. t. v. Needs, Comyns, 525, a general averment of the defendant's difqualification was confidered as not fufficient in a conviction, though well enough in an action. Rex v. Pickells, Mich. 19 G. 2. The conviction there was for keeping and using a lurcher. It was objected that there was no averment that defendant was not lord of a manor. Lee C. J. faid, "He found "no inftance of that fpecies of qualification being fet for h; that all the qualifications "mentioned in the statute of Car. 2. must be set forth; but this is not in the precedents, because it is only an implied or argumentative qualification; the others are expreffed." I Stra. 497. The first objection there is the strong one, upon which I believe that conviction was quafhed. This is not a point of form only, but is of fubftance, and is neceffary to give the juftices jurifdiction; and therefo e must be fet forth. 2d, The witness was examined, in the first place, in the abfence of the defendant, which was an irregular proceeding. The defendant should first have been fummoned, and have had an opportunity to appear; because such examination is ex parte; and when a witness has once sworn a thing he is in a manner bound to abide by it though false, so that defendant cannot crofs examine him upon fair terms. And here too, it is to be observed that at the second meeting, when the defendant was convicted, the witness was not fworn again, but his former depofition read; fo that there was no opportunity for cross examination on any terms. 3d, It is faid that the defendant was not then qualified, three times are mentioned before in the conviction; 1, the time of the offence committed; 2d, the time of the information given; 3d, that of the conviction. To which does then refer?

Mr. Norton contrà. If the court fee that there is an information made, an offence proved, and that the defendant has been heard, or had an opportunity of being heard, they

the bar, and corroborated the report by Sir James Burrow; in 1801. which, he obferved, that the Court had given an exprefs opinion on the very point in favour of the objection now urged. lordship read the note here fubjoined.

His

Gibbs

they will not be afute in fi ding flaws. To the 2d objection it has been faid the juftice fhould have fummoned the defendant before he examined the witnefs. But I apprehend it would have been a stronger objection had he fummoned the party to appear without any probable caufe. If the defendant had defired an opportunity of crofs examining the witnefs, he had a right to it; but it does not appear he defired it, though the witness then attended. The only defence that the defendant made was that he did not commit the fat; he does not claim the qualification. To the first and great objection, the juftices have adjudged the defendant expressly to be in no-wife qualified, empowered, licensed, or authorized; than which words nothing can be well stronger. In Rex ▼. Chandler, 1 Ld. Raym. 581. Holt C. J. faid, "It is fufficient for the justices to purfue the words of the ftatute." It was incumbent on Jarvis, if he had a qualification, to prove it; the justices were only to expect a charge of the fact committed from the witnefs examined. For it is almost impoffible for a witness to prove that the defendant has not fome of the qualifications. As for instance, he must be a herald and well skilled in the laws of precedency to know who at this time is an efquire, or a perfon of higher degree. To know who is qualified by virtue of this eftate a witness must be intimately acquainted with a perfon's rental. A fearch must be made with the clerk of the peace before a witnefs could know who was a game-keeper. And, laftly, how can a witnefs inform himself whether the party he accufes be keeper of a chace, &c. ? All these are negatives; the defendant is fummoned to prove the affirmative if he can. There are feveral cafes, though not exprefsly in point, yet applicable by parity of reasoning. In Rex v. Ford, Stra. 555. which was a conviction for keeping an alehoufe without licence, it was objected that there was an exception in the act, and, that it should appear he did not fall within it; but the Court held that that exception coming by way of provifo, the defendant fhould have infifted on it in his own defence. Rex v. Theed, I Stra, 608. is in point; for there the exception did not come in by way of provifo, but in the enacting part. But further, it is fufficient if a conviction follow the very words of the ftatute. The ftatute of Queen Anne, on which this conviction is grounded, has the words "not being qualified according to the laws in being" (or to that purpose); now here are these and ftronger words added. In Q. v. Matthews, 10 Mod. 27. Vin. Abr and Burn's Juftice, the Court faid, it had been enough if the want of qualifications had been alleged generally; but it was holden bad, becaufe fome, but not all, were fet forth. In Rex v. Marriott, 1 Stra, 66. the conviction was ho'den bad, because the words were the words of the witness; but had they been the words of adjudication of the juftices it feems it would have been well. As to the cafe of Rex v. Hill, it is certainly an authority against me as far as it goes; but it is flated fo shortly that one can form little judgment from it. The words in that cafe poffibly were the words of the witnefs, or there might be fome other objection not flated. The cafe in Comyns, 525, as far as it goes, is with me, for in an action of debt for the penalty on this act, it is clearly enough to allege the want of qualifications generally. How thofe two cafes are diftinguishable I protest I do not fee: the reafon is the tame; the defence is the fame in both cales. In Rex v. Pickeils the conviction was affirmed, though the objection taken was Aronger thin here. One qualification was omitted, though the others were fet forth parti cularly; and I do not fee why that qualification being created by another later law fhould alter the cafe. Therefore the point determined in that refolution feems not against us. He was then proceeding to answer the other objection; but the Court told him it would be de termined on this; and alfo told Mr. Gould he need not take the trouble of replying.

Lord Mansfield C. J. If this matter was res integra, and open to be gone into by reafoning at large, yet I should think it neceflary for the juftices to show that the perfon convicted was an object of their jurifdiction; that is, that he had none of the qualifications mentioned in the ftatute of Car. 2. For it is a known diftinction that what comes by way of provifo in a statute must be infifted on by way of defence by the party accufed; but where exceptions are in the enacting part of a law, it must appear in the charge that the defendant does not fall within any of them. But in this cafe I do not think my felt at liberty to go into the question If it were doubtful; for all the cafes from the making of the ftatute are uniform in fupport of the objection. The judgment in the Queen v. Mathews has nothing to do with this cafe: there is an obiter faying only at beft. In Rex v. Marriott, the witnefs fwore generally that the perfon was not qualified; that was holden bad. The witness in this cafe fwears exactly the fame; and the juftices adjudge on that evidence only. The fream can never go higher than the fpring head. Rex v. Hill is in point. In the cafe from Comyns, as that was an action, the general averment might be fufficient; becaufe in the examination of the queftion at the trial the qualification might be gone into. The Chief Justice, in Reș v. Pickells, argued from this as a fettled point, exceptio probat regulam. Therefore this

The KING againft STONE.

*[645]

point

1801.

Gibbs contrà. The information in Rex v. Jarvis omitted to negative the defendant's qualifications, and was therefore clearly The KING bad; and what was there faid by the Court must be taken with against reference to the point in judgment. There can be no difference STONE. in the rules of evidence as applicable to proceedings before juftices *[647] of peace, and before the fuperior courts; and in actions for penalties it never was deemed neceflary for the plaintiff to difprove the defendant's qualifications. It is impoflible in the nature of the thing that a profecutor fhould be able to prove all thofe negatives. If the fact conftituting the offence be proved, it is fufficient to put the party upon his defence; and he to whom the fact must be beft known must prove the affirmative, and fhew that he was qualified [648] to do it. It is true, that in R. v. Thompson (a) the precedent in Burn was sustained; but the Court expreffed great diffatisfaction with it, and this point was not in question. It must indeed be ftated in a declaration for the penalty, that the defendant "not "being a perfon duly qualified, &c. to kill game," &c. did the act; but it is not neceffary for the plaintiff to prove the difqualifi cation; and if not, neither can it be neceffary for the profecutor to prove the like allegation in an information before a magiftrate. If the negative of the qualifications were not introduced in the fame claufe of the act by which the offence is conftituted, it would not be neceflary even to ftate thofe negatives in the information: but that is a mere technical rule of pleading; and it cannot alter the nature of the evidence whether fuch matter be introduced in the fame or any fubfequent claufe; it is ftill only matter of defence, and the affirmative must be proved by the party who wishes to avail himself of it. As to the other objection, the magiftrate

point feems fettled by all the determinations; for which reafon I do not enter at large inte the question; though if I should do that the exception seems well founded.

Dennifon J. I thought this question had been at reit; because it is founded on strong reafons and rules of law. There is a known diftinction between exceptions in a statute by way of provifo (which need not be fet forth) and thofe in the purview of the act; and to this point there is a very strong cafe, (Rex v. Bell, vide Foft. 430.) upon an indictment agains a perfon for having coining inftruments in his cuftody. It was faid by Mr. Norton, that in a conviction it is fufficient to pursue the words of the act of parliament: but I think that is not fo; and there are many cafes where it has been ruled otherwife. Among other inftances it was fo determined in the cafe of Rex v. Chapman, Eafter term 28 Geo. 2. upon a conviction of a perfon for robbing an orchard; which the Court held not fufficient; but it ought to have appeared of what, and how, the orchard was robbed, that they might judge whether it were a robbery within the meaning of the 43 Eliz. c. 7.

Fofter J. I am of the fame opinion. Where negatives are defcriptive of the offence, there they must be fet forth. The cafe my brother Denison refers to upon the ftat. 8 & 9 W. 3. for having coining inftruments in his custody is very ftrong. I am strongly inclined against the authority of the cafe in Comyns upon the action of debt for the penalty.

Conviction quashed,

(a) On the mention of this cafe Lord Kenyon C. J. faid, One point in that cafe has always afforded me great diffatisfaction; namely, that the Court would in any cafe intend that the evidence was given in the defendant's presence, without its so appearing on the face of the conviction. Mr. Juftice Buller, unadvifedly as I think, in that cafe held that the form of conviction there purfued was well enough, because the precedent in Burn was in the fame form. I am very forry that that was ever acquiefced in by me (1). I have often thought fince that there is found fenfe in what was once faid by the late Lord C. J. Eyre, that the fooner a bad precedent was gotten rid of the better.

(1) Vide R. v. Lovett, 7 Term Rep, 153, and R. v. Swallow, 8 Term Rep. 284.

does

1801.

does adjudge the defendant not to be qualified; for the information charges that he was not qualified in the manner required; and that being read to him, he denies it, and pleads not guilty to The KING the whole; then the fact being proved, and he pretending to be again qualified, but giving no evidence of it, as it was incumbent on him to do, the juftice adjudges him guilty of the offence aforefaid; *[649] which therefore refers to the offence as charged in the information.

STONE.

Lord KENYON C. J. The first objection is fairly gotten rid of. Juftice requires that a party fhould be duly fummoned and fully heard before he is condemned; but if he be ftated to be prefent at the time of the proceeding, and to have heard all the witnefies, and not to have asked for any further time to bring forward his defence, if he had any, this at all times has been deemed fufficient. On the other point there is much weight in the objection. The cafe of The King v. Jarvis was decided above forty years ago and at that time Mr. Juftice Dennison thought that the question had been long at reft; and Lord Mansfield said, that it had been fettled by fuch a train of authorities that he did not think himself at liberty to go into the queftion: and he referred to the cafe of The King v. Marriott, where the witness only swearing generally to the want of qualification of the defendant was holden not to be sufficient. No comparison can be made between fummary proceedings on a conviction before magiftrates, and actions in the courts of common law. In the former it is incumbent upon the magiftrates to thew exprefsly that they had a jurifdiction in the particular inftance; and they have no jurifdiction to convict unless the defendant had none of the qualifications mentioned in the statute of 22 & 23 Car. 2. All thefe being in the purview of the act must be fpecifically negatived by the profecutor in his information. The diftinction between this cafe and one where the exceptions [ 650 } are introduced by way of provifo in a statute, was exprefsly stated by Mr. Juftice Dennison, than whom no perfon was ever better verfed in the rules of fpecial pleading. And in Sir James Burrow's report of the cafe (a), it is ftated to have been faid by him, " that "the evidence of the adjudication ought both of them to be, that "the defendant has not thofe qualifications that are specified in "the act or any of them." That that was fo ftated and underftood by the bar at the time appears from the precedent of the form of fuch a conviction fettled by Mr. Dunning, which is given by Mr. Bofcarven in his treatife on convictions (6), in which precedent the qualifications are all fpecifically negatived, not only in the information, but alfo in fetting forth the evidence, and again in the adjudication. But it is faid to be impoffible for the profecutor's witness to give negative evidence of the want of qualification in the defendant: but I do not fee why that may not be done. A witness may give general evidence of it from his belief. He may know the defendant, and know that to all appearance he is not a man of fubftance: evidence may be given of his condition in life to raise a reasonable prefumption against his having any of the neceffary qualifications. It is neceffary for courts of juftice to hold

(a) 1 Burr. 154. (6) p. 156. vide p. 44-6. in the fame book.

1801.

STONE.

a ftrict hand over fummary proceedings before magistrates, and I never will agree to relax any of the rules by which they have been The KING bound. Their jurifdiction is of a limited nature, and they muft against fhew that the party was brought within it. Shall it be fufficient for the witnefs to fay, that he faw fuch a perfon (perhaps a nobleman of the highest rank and largest fortune in the kingdom) out [651] a fhooting on fuch a day; and fhall that be fufficient to convict him, because the information, which is not upon oath, contains in point of form an allegation that the defendant was not qualified. If this were fufficient to warrant a conviction, unless the defendant proved his own qualification; it may be neceffary for him to bring his title deeds and witneffes from the furthest part of the kingdom, in order to fhew his qualification. The propofition is monftrous; and the inconvenience and vexation would be infufferable. I know not how far it may not extend. The legislature only intended to fubject perfons not having certain qualifications to this fummary jurifdiction. The defendant must therefore be fhewn to be fuch a perfon. And if Lord Mansfield, Mr. Justice Dennifon, and Mr. Juftice Fofter thought that all this was neceflary above forty years ago, furely the length of time which has fince elapfed, without their decifion having been called in question, has not weakened but rather confirmed the authority of it. Therefore I am of opinion in this cafe that evidence ought to have been given of the defendant's want of the qualifications mentioned in the ftatute, which the magiftrate should have fet out in the conviction, and that he fhould have proceeded to adjudge that the defendant had not thofe qualifications,

any

GROSE J. I fhall not attempt to vindicate all the doctrine which is to be found in the books refpecting fummary proceedings before juftices of peace. There are certain technical rules laid down for their obfervance, which I cannot reconcile to the rules which regulate proceedings in other cafes. I cannot fay why there fhould be diftinction between the mode of proof in a proceeding of this fort, and in an action on the game laws, where I be[652] lieve no negative proof is ever given by the profecutor of the want of qualification in the defendant; but the affirmative proof lies upon him to fhew fuch qualification. On looking however into the books, one finds that diftinctions have been made between them, and that certain technical rules have been established for regulating proceedings on convictions which cannot now be overthrown without manifeft confufion. Amongst other rules it has been faid by Lord Mansfield and Mr. Justice Dennison, that there must be evidence of the defendant's want of qualification in order to warrant a conviction: and there is no fuch evidence ftated in this conviction. Whatever therefore my opinion might have been if this had been res nova, I cannot fet up my judgment against theirs which has been fo long acquiefced in, and therefore I feel myself compelled to fay that this conviction is bad.

LAWRENCE J. Every conviction muft undoubtedly charge, that the defendant had none of thofe qualifications which are mentioned in the enacting claufe of the ftatute; for unless that be fo charged, there is no offence imputed to the defendant of which he can be

convicted.