statute as made in two years, is bad; Rex v. Biers, 1 A. & E. 327*; and this indictment

* Easter Term, 1834. In this case, the defendants were convicted upon an indictment, which stated, that they, on &c., in the 3rd year of the reign of our lord the now king, well knowing that E. W. and T. W. were the proprietors of a certain licensed stage carriage, drawn by two horses, numbered &c., and that they as such proprietors were liable to the payment of certain penalties in which the driver, whose name was unknown, of the said licensed stage carriage should be convicted before any one of H. M. justices for the county of Middlesex, of any offence committed by the said driver against a certain act of parlia ment made and passed in the second and third years of the reign of his present Majesty, intituled &c., unlawfully did conspire &c., to exhibit a certain information against the said E. W. and T. W., as such proprietors &c."

Adolphus now moved to arrest the judgment, on the ground, that a statute cannot be passed in two years, and a misrecital of a day in passing an act of parliament is fatal, (Bac. Abr. Stat. L. 5., and the authorities there referred to). Also Nutt v. Stedman, (Fortescue, 372), where it was held, that a statute could not be pleaded as made in the 8 and 9 of Will. 3; because in law an act cannot be made in two years; and though so mentioned in the statute book it cannot be good. Also Rumsey v. Tuffnell, 2 Bing. 255; where judgment was arrested because the declaration recited a statute as passed at a session begun in the 29 Eliz., whereas the session began in the 28 Eliz.

Sir James Scarlett, on the other side, referred to Viner's Abridgement, Stats. E. 3 & E. 5; and Bryant v. Withers, 2 M. & S. 123.

The K. B. decided in favour of the objection, and arrested

describes it according to the fact *. And as to the variance alleged to be in the memorial, the bankruptcy is not to be set aside, because the commissioners adopt the popular description of the statute, which is also used in the statute book itself, and adopted by the legislature in the pre

5 & 6 W, 4, amble to the 5 & 6 Will. 4, c. 29 †.

C. 29.

1 & 2 W. 4,

c. 56.

Williams, J.-"The memorial is left general, and this is merely matter of popular description, to be found on the face of the statute book itself. As to the question, whether or not the oath is a wrong one, the objection appears upon the face of the record, and my holding will not conclude the prisoner."

the judgment. They founded their decision upon the authority of Langley v. Haynes, Moore, 302: Hawk. P. C. b. 2, c. 23, followed by the decision in Nutt v. Stedman, Fortescue, 372. See also Rann v. Green, 2 Cowp. 474; Burt v. Rothwell, 1 Lutw. 140, and 1 Ld. Raym. 343; Palmer v. Taylor, 3 Keb. 468.

In Partridge v. Strange, Plowden, 84, it is laid down, that misrecital is not answered by shewing that the statute need not have been recited at all; but in that case there was a continued reference to the statute as misrecited throughout the declaration.

* King William 4 ascended the throne on the 26th June, 1830. This act (commonly called the 1 & 2 W. 4, c. 56) received the royal assent, on the 20th of October, 1831.

Which begins, "Whereas by an Act passed in the 1st and 2nd years of the reign of his present Majesty, intituled &c."

The indictment alleged that notice of the said fiat, according to the directions of the "statute" &c., was delivered to the said John Ratcliffe.

Dundas objected, that it ought to have been according to the directions of the "statutes." The summons being under both the 6 Geo. 4, c. 16, and 1 & 2 Will. 4, c. 56.

Williams, J.-"That is surplusage; if they had authority it is sufficient."

Dundas objected, that the service of the notice was insufficiently alleged. The words of the statute, 6 Geo. 4, c. 56, are, “notice thereof in 6 G. 4, c. 56. writing to be left at the usual place of abode of such person, or personal notice in case such person be then in prison." Here personal service is al- Ante, p. 65. leged, but it is not alleged that he was " then in prison." If he was not then in prison, the service ought to have been at the dwelling-house. Rex v. Burraston, 1 Gow, 210*.

Williams, J.—“ It is not necessary to decide

* In this case, which was tried at the Worcester assizes, July, 1820, the notice was personally served upon the bankrupt at his dwelling-house. The indictment alleged a personal service, without stating whether the bankrupt was at the time in confinement or not. It was objected, that as the statute (5 Geo. 2, c. 1), on which the indictment was 5 G. 2, c. 1. framed, pointed out two modes of service, viz. one, at the

usual place of abode of the bankrupt, and the other, a per

sonal service in the event of his being in prison, the indict

the point here. The objection, if material, is on the record. At present, I am inclined to think that personal service would do in any case."

The allegation of notice in the London Gazette was proved by merely putting in a copy of the Gazette, which was filed with the proceedings, and bore the commissioners' signatures*.

Dundas." That is not enough; the purchase of the copy of the Gazette must be regularly proved."

Williams, J.-"It seems to me that I must receive it as it is; suppose they were to give proof of purchase in a shop, must you call upon the seller to produce his patent?"

The indictment alleged, that, by the advertisement in the London Gazette, the bankrupt was Ante, p. 67. required to surrender himself at Pontefract.

ment should have alleged that the bankrupt was a prisoner at the time of the service.

The report says, that Best, J., "inclined to think the objec tion valid." The prisoner was, however, acquitted upon a more material variance.

* In Forsyth's case, R. & R. C. C. 277. — “ The judges seemed to think, that the production of the Gazette would be sufficient without proof of its being bought of the Gazette printer, or where it came from."

Le Blanc, J. doubted whether averment of notice in the Gazette was not unnecessary where the bankrupt bad appeared to his commission and had been examined.

Dundas objected, that there was a variance between the allegation of notice in the indictment and the advertisement in the Gazette, inasmuch as by the latter he was required to surrender himself at the Town Hall in Pontefract.

Sir G. A. Lewin and R. Hall.-The Gazette does not purport to give him notice; and, if it did, we do not undertake to set out the notice alleged in the indictment according to the tenor. But there is, in fact, no variance, the evidence proves the whole of the allegation, and something

more.

Williams, J.-" The question is, whether this be a variance, and I think that it is not. Nothing is more familiar in practice than to give full proof of an allegation, and something more.

"The advertisement in the Gazette is undoubtedly a notice to the bankrupt, as well as to the world at large; but the indictment does not undertake to set it out according to the tenor.

"If the notice alleged to have been given was an insufficient notice, the objection is on the record."

The indictment alleged, that, after the examination of the bankrupt, and after he had subscribed the same, and the said F. M., H. T., and J. F., had subscribed their names to the same, a question was put by the said H. T. to the said Ante, p. 73. John Ratcliffe.