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THIBAULT

v.

GIBSON.

[ *93 ]

thus stated: "In pleading upon statutes, where there is an exception in the enacting clause, the plaintiff must show that the defendant is not within the exception; but if there be an exception in a subsequent clause, that is matter of defence, and the other party must show it to exempt himself from the penalty." If that principle be correctly laid down, and there is no doubt it is, it must apply more strongly in the present case, where the exception is contained in a different Act, passed long subsequent to the one creating the penalty. Turquand v. Mosedon is distinguishable, because there the question arose on the replication, which was in the nature of a plea, in which greater strictness is required than in a declaration (1), and taking the replication to be in the nature of a plea, it clearly ought to have shown that it was excepted from the provisions of the recent statutes.

Lush (Jervis was with him), in support of the rule:

It is not necessary to say that the statute of Anne is entirely repealed, but it is submitted that the stat. 2 & 3 Vict. c. 37, has repealed it with respect to all contracts, except those which relate to or concern land. The statute of Victoria cannot be considered as merely an exception engrafted by the Legislature on the statute of Anne, for it is clear *that the first section, but for the proviso at the end of it, would have had the effect of entirely repealing that statute. That proviso was, in effect, a re-enactment of the provisions of the statute of Anne as respects charges on land. The offence is now the exception, and therefore the rule cited does not apply. The plaintiff ought to bring himself within the statute of Anne, by showing that the case is within the proviso in the Act of Victoria.

(PARKE, B.: The declaration is correctly framed according to the provisions of the statute of Anne, and if you can show that this case is taken out of the operation of that statute by subsequent Acts, it lies on you to do so. This rule was granted entirely on the assumption that the case was within the decision in Turquand v. Mosedon, which it is not.)

The defendant does not rest absolutely upon that case, but upon the principles there acted on. Under the statute of Anne all usurious contracts were illegal, with some few exceptions; but since the recent statutes they are generally legal, and the prohibited cases have become the exceptions. * * It was for the plaintiff to show clearly that the defendant has committed the offence; but this may or may not be one; it may have been either a security on land or a personal security. If the defendant had pleaded that the contract

(1) 1 Wms. Saund. 276, note (e).

declared on did not relate to land, it might have been met with the THIBAULT *answer that the declaration had not alleged that it did.

(PARKE, B.: You might apply the same argument to all the cases cited in the note in Chitty, and which are authorities against you. The rule is for the plaintiff to declare on the statute giving the penalty, and it is for the defendant to show that he is not liable by subsequent statutes.)

This is a penal action, and analogous to an indictment or information, in which the plaintiff is bound to show on the face of the declaration everything necessary to bring the defendant within the law: Rex v. Everett (1). But here the declaration does not necessarily show that any offence has been committed. It is at least ambiguous.

(PARKE, B.: There is no ambiguity, if you look to the rule. If the plaintiff brings the defendant within the statute of Anne, which gives the penalty, and the defendant does not take himself out of it by showing that he is within the subsequent statute, he remains within it.)

LORD ABINGER, C. B.:

I believe it is a well-established principle, that, in all cases where proceedings are taken against a party for the recovery of a penalty under a statute, if there be any exception in the clause which gives the penalty, exempting certain cases from its operation, the declaration or information must show that the particular case is not within the exception. But where it comes by way of proviso in a subsequent part of the Act, it is not necessary to notice it in the declaration or information, but it is matter which the defendant must allege as a ground of defence. The same rule applies with increased force and efficacy to the case where penalties are given by one statute, and particular cases are, by a subsequent statute, exempted from its operation. That is the present case; here the declaration is framed for penalties under the statute of Anne, and clearly brings the case within the provisions of that Act; and if the defendant means to set up that he is protected by the subsequent statute of 2 & 3 Vict. c. 37, or any other statute, he must show it as a ground of defence. The only object of the proceedings is to bring the case within the statute of Anne: and if, on the face of the declaration, the case appears to come within it, the plaintiff is entitled to judgment, unless a defence is made to it, and it be shown to come within the exceptions qualifying the provisions of that statute. The case of Turquind v. Mosedon, on (1) 8 B. & C. 114.

v.

GIBSON.

[ *94 ]

[ *95]

THIBAULT

v.

GIBSON.

[ *96]

which this rule was granted, is not applicable to this case, because the question there was as to the sufficiency of a replication in the nature of a plea setting up a statute as a defence, which the COURT thought it did not do with certainty, so as to bring the case within it. It is, consequently, no authority on the present question; and I think this rule must, therefore, be discharged.

PARKE, B.:

I am of the same opinion. The rule of pleading which has been adverted to is thus stated in 1 Wms. Saund. 262 a: "Wherever a statute inflicts a penalty for an offence created by it, upon conviction before one or more justices of the peace, but there is an exception in the enacting clause of persons under particular circumstances, it is necessary to state in the information, that the defendant is not within any of the exceptions. And it seems immaterial whether the exception be in the same section, or in a preceding Act of Parliament referred to by the enacting clause. But where the exemption is contained in a proviso in a subsequent section or Act of Parliament, it is matter of defence; and therefore it is not necessary to state in the conviction that the defendant is not within such proviso." In all cases of exception, where it comes by way of proviso in a subsequent section, the exception must be noticed by the party who relies on it; and *I have some doubt whether the same rule does not also hold, even where the exception comes by way of proviso in the same section, although it will not be necessary to decide that point at present; for, however that may be, there can be no doubt whatever, that where the exception is contained in a subsequent Act of Parliament, taking the case out of the penalties of the former one, it is for the defendant to avail himself of it, and to show it as a ground of defence. In the present case, it is sufficient for the plaintiff to rely on the original Act, which is still in force, the effect of it being only destroyedas to certain cases by the subsequent enactment. effect of the 2 & 3 Vict. is to take out of the operation of the statute of Anne all contracts which were rendered usurious by that statute, except such as affect land; and it is therefore quite enough for the plaintiff to declare against the defendant in the general words of the statute of Anne. There is no ground, therefore, for arresting the judgment, and as the plaintiff in this case has proved that there was a loan of a sum of money at a rate of interest exceeding 51. per cent., and there is no proof that the contract really was not in respect of land, he is entitled to recover.

GURNEY, B., and ROLFE, B., concurred.

The

Rule discharged.

BROWN v. THE BRISTOL AND EXETER RAILWAY

COMPANY.

(4 L. T. N. S. 830-832; S. C. 7 Jur. N. S. 950; 9 W. R. 872.) Held, that a jury cannot be asked the grounds of their verdict (1). THIS was an action brought against the defendants for negligence and delay in carrying certain cattle from the Tiverton Road Station to Banbury, where a market was held.

[The only point on which this case was followed in Arnold v. Jeffreys being that stated in the last paragraph of the original head-note, the facts of the case are immaterial and are not now reprinted.]

The cause was tried at Exeter, before Martin, B., when the plaintiff obtained a verdict for 30l. A rule nisi was subsequently obtained to set aside that verdict, on the ground of misdirection, that the damages were excessive, and that the verdict was against the evidence on the second and third counts.

M. Smith, Q.C., and Kingdon showed cause.

Kinglake, Serjt. and Karslake, contrà.

BRAMWELL, B. delivered judgment:

1861.

May 25.
July 6.

[830]

Cur. adv. vult.

July 6.

In this case, which was tried before my brother Martin at the last Assizes for Exeter, we are of opinion that the rule should be discharged. It is not necessary to go into the case at any great length, for it got into a great deal of complication. The verdict was found for the plaintiff, and it is conceded that, in reality, the plaintiff cannot be entitled to the verdict on two of the counts: one was properly found, and no doubt the other count ought not to be found for the plaintiff, subject to what I am going to say. At the conclusion of the trial, after the learned Judge had summed up, and directed the attention of the jury to all the different counts and the questions raised by them, and the jury had given their verdict for the plaintiff, the counsel for the defendant made an application to the learned Judge which was not complied with, and which caused in part this application to us for a new trial. Now that application was not to the learned Judge to have the verdict entered on one or other of the counts, according as the jury had found one or other of the causes of action to be the true cause of action; but it was to know on what ground the jury had found their verdict. We all think that that is an application the learned Judge very properly refused. No doubt, in one sense, it may always be said-If you leave a question to the jury, the jury have their reason for what

(1) Foll. on this point, Arnold v. Jeffreys [1914] 1 K. B. 512, 83 L. J. K. B. 329, 110 L. T. 253.

[ 831 ]

BROWN

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they think, and there can be no real harm in asking for that THE BRISTOL reason, and what it is. If such a rule were laid down, I believe AND EXETER trial by jury would be positively impracticable. You leave the COMPANY. question to twelve men to exercise their judgment according to law;

RAILWAY

[ 832 ]

and, understanding it, they apply practical rules to it, and come to a decision somehow or other. It would be extremely difficult almost in every case to come to a decision, if the jury are to agree in the particular reasons on which they come to a decision. We think, therefore, that my brother MARTIN was right in refusing the application which he understands was made to him not to ascertain on what counts the plaintiff was entitled, but on what ground the jury had come to the conclusion they did. **

MARTIN, B.:

I quite concur in the judgment. I wish to mention that I was misunderstood if it was supposed that I said what I am stated to have said on the application of my brother Kinglake after the cause was tried. I know it was for the purpose of asking the jury a question, but whether it was to ask, "How do you find, on one particular count or the other?" I do not recollect; but, whether one or the other, I should not have asked the question after they had considered. The duty of the Judge is to sum up the case correctly to the jury, and, after having summed up, his duty is over, and it is for the jury to find a verdict. In this particular case what took place was this: The cause was tried, and there were long addresses of the learned counsel and a reply. On the following morning I was told the Company attached considerable consequence to the matter, and in all probability there would be a bill of exceptions. I was told so the evening before by my brother Kinglake, and I considered how I should sum up to the jury, and I did it very carefully. At the conclusion of it I asked if there was anything further they wished to add; and whether they were desirous to tender a bill of exceptions. I was told "no." Thereupon the matter went to the jury on my summing up, and I believe it was quite correct.

Rule discharged.

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