on stat. 22 G. 3. c. 47. § 13., against insuring tickets in any state lottery to be authorized by act of parliament) was quashed, because the information did not express that the ticket insured was a ticket in the state lottery, though the lottery was described as being authorized by stat. 25 G. 3. c. 59.

So, a conviction on stat. 3 W. & M. c. 10. § 2. (now repealed), for killing deer, was quashed, for alleging the deer to be killed in quodam loco, where they had been usually kept, without describing it as inclosed, pursuant to the terms of the statute. Reg. v. Moore, 2 Ld. Raym. 791. Paley, 67.

In this respect also it is sometimes necessary, in pursuance of the intent of the statute, to be more particular in the description of the offence than the terms contained in the statute itself. (See antè, p. 699.) Instances of this occurred upon the repealed game act, 5 Ann. c. 14. Thus, it was held, that a conviction on that statute, for keeping a gun alleged to be "an engine for destroying game," could not be supported; for, though the words of the act prohibited the keeping or using "any engine to kill and destroy game," it was so construed as to confine the offence of keeping to those things which can only be used for the purposes prohibited by the act, whereas a gun may be kept without any unlawful design. R. v. Gardner, Andr. 255. 2 Str. 1098. Paley, 72.

So, the act 5 G. 3. c. 14. § 5. (repealed by 7 & 8 G. 4. c. 27.), prohibited generally, and under a penalty given to the owner, the taking of fish in private fisheries, without any express reservation in the words of the statute as to the owner's consent; but the statute was so construed as to require that the want of such consent must be stated in the information. R. v. Corden, 4 Burr.2279. Paley, 79.

R. v. Daman, 2 B. & A. 378. S.C. 1 Chitt. Rep. 147. By the 5 G. 3. c. 14. §3. (repealed by stat. 7&8 G. 4. c. 27. §1. (a)) it was enacted, that any person that should take or destroy fish in any river, or stream, pond, or pool, or other water, being lawfully convicted, should forfeit and pay, for every such offence, the sum of 51. to the owner of the fishery. It was held, that in a conviction upon this statute it must be distinctly stated in the information and in the evidence, that the proceeding was at the instance of the owner of the fishery; and, therefore, where it was merely stated in the memorandum of a conviction, that the proceeding was at the instance of such owner, and where the information, without containing any such allegation, concluded with a mere prayer of judgment on behalf of such owner, and the evidence was wholly silent on the subject, the conviction was held to be bad.

In Ex parte Hawkins, 2B. & C. 31., a conviction stated, that C. H. was convicted of having been found on board a vessel sub. ject to forfeiture, for hovering within the limits of a port of this kingdom, having certain contraband goods on board. The stat. 24 G. 3. c. 47. § 1. enacted, that "if any ship or vessel shall be found at anchor, or hovering within the limits of any of the ports of this kingdom, or within four leagues of the coast thereof, or shall be dis

(a) The substituted statute, 7 & 8 G. 4. c. 29. § 34., contains a similar enactment (see tit. Fish and Fisheries, Vol. III. (Criminal Law,) p. 220.); but a form is given by § 71., which gets rid of the point in R. v. Daman, as to the frame of conviction, altogether.

covered to have been within the said limits or distance, (and not proceeding on her voyage, wind and weather permitting, unless in case of unavoidable necessity and distress of weather,) having on board any brandy, &c. or any goods liable to forfeiture by any act of parliament upon being imported into Great Britain; then not only all such goods, but also the ship or vessel on board which they shall be found as aforesaid, shall be forfeited." And the stat. 45 G. 3. c. 121. §7. (repealed by stat. 6 G. 4. c. 105.) made liable to arrest all British subjects found or discovered on board any ship or vessel liable to forfeiture under that or any other act for hovering, unless they prove that they were passengers. And the stat. 3 G. 4. c. 110. (repealed by stat. 6G. 4. c. 105.) gave a general form of conviction (leaving a blank for the description of the offence). This conviction was held bad, first, because it did not appear on the face of the conviction that the vessel was liable to forfeiture, and, secondly, because it was not alleged that H. was a British subject. -Per curiam. "The offence is not sufficiently described in the conviction, for it does not appear that the vessel was liable to forfeiture. It is merely stated, that the vessel was found hovering with certain goods on board. But a vessel may be hovering, and still not be liable to forfeiture. It would be putting too narrow a construction on the act to confine the application of the words, not proceeding on her voyage,' to those vessels which have been within a certain distance of the coast; for if that were so, vessels hovering for a pilot, or for any other innocent purpose, might be subjected to forfeiture. The hovering contemplated by the legislature is, hovering with power to proceed, and without any sufficient cause for not doing so. The conviction is bad upon another ground also, viz. that the party is not described as a British subject. If he were not so, the thing charged against him would not constitute an offence within the 45 G. 3. c. 121. §7., or render him liable to punishment. Every thing necessary to shew that an offence has been committed must be stated in a conviction; the allegation of his being a British subject was therefore essential to the description of the offence, and that must be correctly stated, notwithstanding the general form given by the 3 G. 4. c. 110. (now repealed). The prisoner must therefore be discharged."

So it was held, in Wilkins v. Wright, 2 Crompt. & Mees. 191. S.C. 3 Tyrwh. 824., that a warrant of commitment for neglecting to pay a sum awarded by an order of maintenance under 49 G. 3. c. 63. §8. was not merely a warrant of commitment, but a conviction; and therefore, that it was requisite that it should appear on the face of it that the magistrate had jurisdiction, and that he had good grounds for convicting. And therefore, that such commitment was bad where it omitted to state, that there was a complaint on oath by one of the overseers of the parish liable to maintain the child; an adju dication by the magistrate that a sum was due and unpaid; that the party charged was called upon for his defence, and that he did not shew any reasonable or sufficient cause for not paying. (See tit. Bastards, ante, p. 364.)

Again, in R. v. Walsh, 1 Adol. & Ell. 481., a conviction under stat. 3 & 4 W. 4. c. 55. § 27. stated, that the defendant refused to deliver up a certificate of registry to H. M's officers of customs: and it was held, that this was bad, as not bringing the offence within the words of the section, "shall refuse to deliver up to the proper off

cers of H.M.'s customs."-The conviction did not state for what purpose the certificate was required: and it was held, per Lord Denman C.J. and Williams J., that this omission also made the conviction bad, as not satisfying the words of the same section, "to deliver up for the purpose of such ship or vessel, as occasion shall require."—It was also held, that these were defects in substance, and not cured by the general act, 3 G. 4. c. 23. § 3. (See post, p. 719.)

Another instance of the certainty required by law in the description of the charge in the information may be found in the rule, that an offence cannot be charged in the disjunctive.

Thus, by the stat. 6 G. 4. c. 108. §3. (repealed by stat. 3 & 4 W. 4. c. 50.) it was enacted, that vessels of a certain description found" in any part of the British or Irish channels, or elsewhere on the high seas, within 100 leagues of the coasts of the U. K., having in any manner attached thereto casks of certain dimensions, of the sort or description used, or intended to be used, or fit or adapted for the smuggling of spirits, the casks, vessel, &c. should be forfeited." By § 49., certain persons found to have been on board such vessels liable to forfeiture, were subjected to certain punishments. A conviction stated that A. B. was convicted of having been found on board a vessel liable to forfeiture; for that it was found in the British channel, having in a certain manner attached thereto divers, to wit, twenty casks (of the dimensions mentioned in §3.), and of the sort or description used, or intended to be used, for the smuggling of spirits. It was held, that the allegation that the casks were "of the sort or description used, or intended to be used, for the smuggling of spirits," being in the alternative, was bad. Ex parte Pain, 5 B. & C. 251.

So in R. v. North, 6 Dow. & Ryl. 143., an information on stat. 48 G. 3. c. 143., for selling beer or ale without an excise licence, was held bad, and a conviction thereon, shewing that the defendant had sold ale only, was quashed. —S. M. Phillips contended, that the objection of the statement being in the alternative was not now available, even supposing it to have any weight, for, being merely an objection in point of form, it was concluded by the operation of the 3d sect. of the statute, which declares, that in all cases where it appears by the conviction that the defendant has appeared and pleaded, and the merits have been tried, no advantage shall be taken of any defect of form. Here it appeared that the defendant had appeared and pleaded, and had gone into his defence upon the merits, and consequently no advantage could now be taken of the objection.- Bayley J. It does not appear to me that this is a mere formal objection; I think it is matter of substance. The information must contain a specific charge, without ambiguity, in order that the defendant may know what he has to answer. Here the substantial charge, as stated in the information, is, that the defendant committed either one offence or another; i. e. that he has sold beer or ale without a licence. The evidence upon which the magistrates convict, applies to selling ale alone. Now I know of no case in which it has been held, that if the charge in the information is informally made for being in the alternative, it can be made good by the evidence. There are many cases in which the court has quashed a conviction, because the information has been uncertain, although the evidence has been sufficiently explicit.

Certainty required in infor

mation.

Charge in the disjunctive bad.

Certainty requisite in information,

where locality is an ingredient

in the charge.

This defendant is called upon to answer an alternative charge, which cannot, I think, be made certain by evidence. This is not, in my opinion, such a defect in form as is contemplated by the 3d sect. of the statute. Convictions upon an act of parliament so penal require a great deal of certainty; and I think there is in this case the greater reason for yielding to this objection, that the statute prescribes a settled form of conviction, which has not been adopted.-Holroyd and Littledale Js. concurred.--Conviction quashed.

So where the information in a conviction under 5 G. 3. c. 14. (repealed by 7 & 8 G. 4. c. 27.) for killing fish in a private river in an inclosed ground without the consent of the owner, stated that the defendant did kill, take, and destroy, or attempt to kill, take, and destroy, the fish, &c., it was held a valid objection that the offence was stated in the alternative. R. v. Sadler, 2 Chitt. Rep. 519.

Again, if a particular locality be an ingredient in the offence charged, the information must define the requisite locality by express allegations: for although the superior courts of law will take judicial notice of the general division of the kingdom into counties (because they are continually in the habit of directing their process to the sheriffs of those counties, and because they are mentioned in a great variety of acts of parliament), yet they will not take judicial notice that any particular place is situate in any particular county, or of the distance of one county or place will take judi- from another. 4 B. & A. 246. 248. Therefore, in the description of the charge, nothing must be left to be helped out by any supposed previous knowledge of distances or of situations by those who are to construe the information.

Of what localities the court

cial notice.

For example, the stat. 59 G. 3. c. 121. § 1. (repealed by 6 G.4. c. 105., see tit. Excise, Vol. II. p. 26.) provided, "That if any foreign smuggling vessel or boat, in which there should be one or more subjects of H. M., whether mariners, or persons pretending to be passengers, should be found or discovered to have been within four leagues of that part of the coast of Great Britain which is between the North Foreland on the coast of Kent and Beecky Head on the coast of Sussex, or within eight leagues of any other part of the coast of Great Britain or Ireland, having on board any foreign brandy, &c., such vessel shall be forfeited:" and then proceeded to enact, that every subject of H. M., who should be found on board such vessel, should be liable to certain pains and penalties, and be convicted, &c. A return to a habeas corpus (during the time this act was in force) stated, that the prisoner was found on board a vessel discovered within eight leagues of that part of Great Britain called Suffolk, to wit, within eight leagues of Orfordness, in the county of Suffolk. Now it is obvious, that in order to describe with perspicuity a forfeiture under this act by reason of such a vessel having been discovered within eight leagues of the coast, it must be made to appear, beyond all doubt, that the part of the coast near which the vessel was discovered, does not lie between the North Foreland and Beechy Head; because in respect of that portion of the coast, no forfeiture is incurred, unless the vessel be within four leagues. And it was held, that the return in question was insufficient in that respect, as it did not aver with sufficient certainty that the vessel was within the limits mentioned by the act of parliament.

For the court could not take judicial notice of the local situation of Orfordness; and though it was averred that Orfordness was a part of the county of Suffolk, the court could not judicially know that it might not be an isolated part of it situated between the North Foreland and Beechy Head. The proper course would have been, to have stated, negatively, that the vessel was found within eight leagues of a part of the coast of Great Britain, not between the North Foreland and Beechy Head, to wit, within eight leagues of Orfordness in the county of Suffolk. (a) Deybel's case, 4 B. & A. 243.

In Souden's case, 4 B. & A. 294., where a return to a habeas corpus stated that a vessel, with smuggled goods on board, was found at the fish-market, within the limits of the ancient town of Rye, it was held, that it did not come within the 24 G. 3. sess. 2. c. 47. § 1.; by which, if a vessel were found at anchor, or hovering within the limits of any of the ports of this kingdom, or within four leagues of the coast thereof, with smuggled goods on board, she became liable to forfeiture; inasmuch as it was quite consistent with the return, that the vessel might be in the fish-market in the ancient town of Rye, but drawn up on the land, which would clearly not be a case within the statute.

R. v. Catherall, Stra. 900. The defendant was convicted on the Kensington turnpike act, for refusing to account and pay over the money received by him as collector. And being committed, and a habeas corpus brought, the defendant was discharged, and the conviction quashed, because no particular sum was specified, nor the times when the money was charged to be received, so as to enable him to defend himself upon a second charge. And, though the counsel for the trustees pressed to have the commitment stand good as to the not accounting, yet the court said it was one entire non-feasance, charged both in the conviction and the commitment, and they would not sever them.

And the quantity of the offence is more especially necessary to be shewn in cases where it is the measure of the penalty or damages to be given by the justice. Thus a conviction upon stat. 43 Eliz. c. 7. § 1. (repealed by 7 & 8 G. 4. c. 27.) against cutting of trees, &c. was questioned for not mentioning the number of trees cut, being the measure of the damages to be given in that case. Q. v. Burnaby, 2 Ld. Raym. 900.

It has been said, "that a conviction on a penal statute ought expressly to shew, that the defendant is not within any of its provisoes; for," continues the author, "since no plea can be admitted to such a conviction, and the defendant can have no remedy against it, but from an exception to some defect appearing in the face of it, and all the proceedings are in a summary manner, it is but reasonable that such a conviction should have the highest certainty, and satisfy the court that the defendant had no such matter in his favour as the statute itself allows him to plead." 2 Haw. c. 25. § 113.

(a) Where an act imposed 100%. penalty upon the offence, if committed within the bills of mortality, and 50l. if without, it was held to be sufficient, in a conviction for the smaller sum, to allege the fact at Reading in the county of Berks, without averring it to be without the bills of mortality. But it seemed to be the opinion of Mr. Justice Buller, that, if the conviction had been for the higher penalty, it might have been necessary expressly to allege the fact to have been committed within the bills of mortality. R. v. Vasey, Bosc. 130. Paley, Conv. 64. Ꮓ Ꮓ

VOL. I.

The informa

tions must specify sums, quantities, &c.

Exceptions must be negatived in the it contained in information, the enacting clause, or in a preceding section or statute: