packages in which they were imported. This provision has no reference to an indictment for selling liquor contrary to the statute. The last objection to the indictment is, that there is no allegation that the liquors sold were not cider for other purposes than that of a beverage," &c. The section on which this indictment is framed renders penal the offence of being a common seller of any spirituous or intoxicating liquors, without being duly appointed or authorized. Then several provisions are made as to the evidence that shall be sufficient to warrant a conviction of this offence, and as to including clerks, servants, &c., in the same indictment with the principal, and as to alleging two or more offences in the same complaint or indictment. The section closes with a proviso, "that nothing in this act shall be construed to prevent the manufacture or sale of cider for other purposes than that of a beverage," &c. This proviso extends to other sections besides that in which it is inserted; viz., to all the sections which prohibit the manufacture or the single sale of liquors. The rule of pleading a statute which contains an exception is usually expressed thus: "If there be an exception in the enacting clause, the party pleading must show that his adversary is not within the exception; but if there be an exception in a subsequent clause or subsequent statute, that is matter of defence, and is to be shown by the other party." The same rule is applied in pleading a private instrument of contract. If such instrument contain in it, first, a general clause, and afterwards a separate and distinct clause which has the effect of taking out of the general clause something that would otherwise be included in it, a party, relying upon the general clause, in pleading, may set out that clause only, without noticing the separate and distinct clause which operates as an exception; but if the exception itself be incorporated in the general clause, then the party relying on it must, in pleading, state it together with the exception. Gould Pl. ch. 4, §§ 20, 21; Vavasour v. Ormrod, 9 Dowling & Ryland, 597, and 6 Barnewall & Cresswell, 430; 2 Saunders Pl. & Ev. (2d ed.) 1025, 1026. The reason of this rule is obvious, and is simply this: Unless the exception in the enacting clause of a statute, or in the general clause in a contract, is negatived in pleading the clause, no offence or no cause of action appears in the indictment or declaration, when compared with the statute or contract. Plowden, 410. But when the exception or proviso is in a subsequent substantive clause, the case provided for in the enacting or general clause may be fully stated without negativing the subsequent exception or proviso. A prima facie case is stated, and it is for the party, for whom matter of excuse is furnished by the statute or the contract, to bring it forward in his defence. In Steel v. Smith (1 Barnewall & Alderson, 94), Bayley, J., said: "When there is an exception so incorporated with the enacting clause, that the one cannot be read without the other, then the exception must be negatived." Our statute concerning the observance of the Lord's day (Rev. Sts. ch. 50), furnishes as plain an example of this rule of pleading as can be found. By section 1, "No person shall do any manner of labor, business, or work, except only works of necessity or charity, on the Lord's day." By section 2, "No person shall travel on the Lord's day, except from necessity or charity." Here the exception is in the enacting clause, and that clause cannot be read without reading the exception. In an indictment on either of these sections, it is doubtless necessary to negative the exception; otherwise, the case provided for is not made out. Labor or travelling merely is not forbidden; but unnecessary labor and travelling, and labor and travelling not required by charity. The absence of necessity and charity is a constituent part of the description of the acts prohibited, precisely as if the statute had, in totidem verbis, forbidden unnecessary labor and travelling, and labor and travelling not demanded by charity. All the cases in which this rule of pleading has been rightly applied, will be found, when examined accurately, to be just the same in principle. See Whitwicke v. Osbaston, 1 Levinz, 26; Jones v. Axen, 1 Lord Raymond, 119; The King v. Jukes, 8 Term R. 542; Thibault v. Gibson, 12 Meeson & Welsby, 88, 94; Smith v. Moore, 6 Greenleaf, 274; Reynolds v. The State, 2 Nott & McCord, 365; The State v. Norman, 2 Devereux, 222; Teel v. Yellis, 4 Johnson, 304. It is stated in several books that the exceptions in the enacting clause of St. 1 Eliz. ch. 2, § 14, need not be negatived in an indictment; and a case in Godbolt, 148, and another in 2 Leonard, 5, are cited, the last of which fully supports this statement. The reason for those decisions is not given in the reports; but we find that St. 29 Eliz. ch. 6, § 5, which was passed before those decisions were made, provided that an indictment on 1 Eliz. need not contain the averments which were omitted in those cases. 1 East P. C. 18; 1 Starkie Crim. Pl. (2d ed.) 176. In the case of Attorney General v. Sheriff, Forrest, 43, it was held that, after verdict, an information for the forfeiture of a ship and cargo, under the provisions of a statute, is sufficient, if by necessary implication a negative of an exception in the statute can be found upon the face of the information. See, also, Smith v. United States, 1 Gallison, 267. The word "except " is not necessary in order to constitute an exception within the rule. The words "unless," "other than," "not being," "not having," &c., have the same legal effect, and require the same form of pleading. Gill v. Scrivens, 7 Term R. 27; Spieres v. Parker, 1 Term R. 141; The King v. Palmer, 1 Leach C. C. (4th ed.) 102; Wells v. Iggulden, 5 Dowling & Ryland, 19; Commonwealth v. Maxwell, 2 Pickering, 139; The State v. Butler, 17 Vermont, 145; 1 East P. C. 166, 167. None of the cases in which indictments have been held bad for omission to negative exceptions in a statute, can be applied to this indictment founded on St. 1852, ch. 322, § 12, which enacts that "no person shall be allowed to be a common seller of spirituous or intoxicating liquors, without being duly appointed or authorized, as aforesaid" (by §§ 2-5), "on pain of forfeiting," &c. This is the enacting clause, which contains only one exception, namely, persons duly appointed or authorized; and that exception is negatived in this indictment. At the end of the section, in a subsequent clause, is a proviso as to the sale of cider, &c. According to the principle already stated, and according to the precedents, this proviso is matter of defence to be shown by the defendant. There is a middle class of cases, namely, where the exception is not, in express terms, introduced into the enacting clause, but only by reference to some subsequent or prior clause, or to some other statute. As when the words "except as hereinafter mentioned," or other words referring to matter out of the enacting clause, are used. The rule in these cases is, that all circumstances of exemption and modification, whether applying to the offence or to the person, which are incorporated by reference with the enacting clause, must be distinctly negatived. Verba relata inesse videntur. The King v. Pratten, 6 Term R. 559; Vavasour v. Ormrod, 9 Dowling & Ryland, 597; 6 Barnewall & Cresswell, 430. It is an elementary principle of pleading (except in dilatory pleas which are not favored), that it is not necessary to allege matter which would come more properly from the other side; that is, it is not necessary to anticipate the adverse party's answer and forestall his defence or reply. It is only when the matter is such that the affirmation or denial of it is essential to the apparent or primâ facie right of the party pleading, that it must be affirmed or denied by him in the first instance. The exceptions are overruled, and the case is to go back to the Municipal Court for further proceedings. This note by Mr. F. F. Heard is taken from 2 Bennett & Heard's Leading Criminal Cases, p. 7, and by the permission of the author is here inserted. "By a statute of Maine, if an executor, knowing himself to be appointed as such, shall not, within thirty days next after the testator's death, cause his will to be filed, &c., in the Probate Office, he shall upon such neglect, "without just excuse made and accepted by the judge of probate for such delay," forfeit a sum not exceeding sixteen dollars per month. On a judgment against an executor for the penalty imposed by this statute, he sued out a writ of error; and the principal error assigned was "that in the declaration it was not alleged that the original defendant had neglected to file the will without just excuse made and accepted by the judge," &c. The court reversed the judgment for this cause. deed, it was impossible for them to do otherwise. But the opinion, given on this point, commenced with these remarks: "There is some perplexity and contradiction in the books respecting the principles to be applied in the decision of the question, in this and many other cases somewhat similar. There seems to be much curious learning, and many nice and shadowy distinctions, the sound reason and solid sense of which are In not very easily discoverable." Smith v. Moore, 6 Greenleaf, at p. 277. The surprise, excited by this exordium, has induced a review of the doctrine discussed in that case; and this review has only increased that surprise. If there are any legal principles which are free from perplexity, or any settled legal distinctions which rest on solid sense and sound reason, surely they lie in the very path which the court must have travelled in arriving at their conclusion in Smith v Moore. : "The rule of pleading a statute, which contains an exception or proviso, is usually thus expressed in the books, viz. If there is an exception in the enacting clause, the party pleading must show that his adversary is not within the exception; but if there be an exception in a subsequent clause, or subsequent statute, that is matter of defence, and is to be shown by the other party.' "The same rule is uniformly applied in pleading private instruments of contract. Accordingly, Lord Tenterden places statutes and contracts together. In Vavasour v. Ormrod, 9 Dowling & Ryland, 599; 6 Barnewall & Cresswell, 432, he thus states the doctrine: If an act of Parliament, or a private instrument, contain in it, first, a general clause, and afterwards a separate and distinct clause, which has the effect of taking out of the general clause something which would otherwise be included in it; a party, relying upon the general clause in pleading, may set out that clause only, without noticing the separate and distinct clause which operates as an exception; but if the exception itself be incorporated in the general clause, then the party relying on it must, in pleading, state it, together with the exception.' The difference is, where an exception is incorporated in the body of the clause, he who pleads the clause ought also to plead the exception; but when there is a clause for the benefit of the pleader, and afterwards follows a proviso which is against him, he shall plead the clause, and leave it to the adversary to show the proviso Treby, C. J., in Jones v. Aren, 1 Lord Raymond, at p. 120; 7 Term R. 31; 4 Johnson, 306. "When a party professes to recite a statute or private instrument, in pleading, and omits an exception in the general clause,' there is a variance. When he counts on a statute and attempts to bring a case, whether civil or criminal, within the 'general clause,' if he omits to negative the exception, he shows no cause of action, or no offence, within the statute. The principle is the same in both instances. That this rule, as to counting on statutes, stands on solid sense and sound reason, and that there is no perplexity in the principle of it, is easily shown by a very few cases which illustrate its application." It is not always easy,' said Hoar, J., in a very recent case, 'to determine to which class, whether of provisos or exceptions, a particular stipulation belongs; and this one is certainly very near the line.' Sohier v. Norwich Fire Insurance Co. 11 Allen, 336, 338. "The statute 19 Geo. 2. ch. 30, s. 1, enac's that no mariner, who shall serve on board any privateer, &c., employed in the British sugar colonies in the West Indies, nor any mariner being on shore in said colonies, shall be liable to be impressed by any officer of a ship of war, unless such mariner shall have before deserted from an English ship of war. A penalty of £50 is given by the same statute, to any person who shall sue therefor, against any officer who shall impress a mariner contrary to its provisions. In an action on this statute against an officer for impressing a mariner, judgment was arrested, because the declaration did not allege that the mariner had not previously deserted from any of his Majesty's ships of war. Spieres v. Parker, 1 Term R. 141. If, however, the statute had, in the enacting or general clause, merely imposed a penalty for impressing a mariner in the sugar colonies, and then had added a proviso that the act should not extend to mariners who had deserted from a ship of war, it would not have been necessary to negative, in the declaration, the mariner's former desertion. That would have been matter to come from the other side. As the enacting clause stood, the penalty was not given for impressing a mariner in the sugar colonies, but for impressing a mariner there who had not previously deserted from a ship of war. The word unless, in the statute, had precisely the same sense and operation, as if it had been, in so many words, enacted that the penalty should be inflicted on any officer who should impress a mariner who had not previously deserted. The impressed mari Lord ner's not having deserted, entered into the very description, and constituted a part of the transaction made penal by the statute. "The case of Gill v. Scrivens, 7 Term R. 27, stands on the same principle. Kenyon there comprises the whole doctrine in a single sentence, -the writ ought to state all those circumstances that entitled the plaintiff to the execution prayed by him.' So in the case of the impressed mariner, Lord Mansfield very briefly gave the whole matter, -the plaintiff must aver a case which brings the defendant within the statute.' A statute of Massachusetts forbids labor and travelling on the Lord's day, except from necessity or charity. Labor or travelling, merely, is not forbidden; but unnecessary labor and travelling, and labor and travelling not required by charity. The exception is in the enacting clause, and the absence of necessity and charity is a constituent part of the description of the acts prohibited; exactly as if the statute had, in totidem verbis, forbidden unnecessary labor, &c., and labor, &c., not demanded by charity. The State v. Barker, 18 Vermont, 195. The third section of the same statute forbids inn-keepers, &c., to entertain on the Lord's day, the inhabitants of the towns where inns are kept, not being lodgers' in the inns. An indictment on this section was held to be bad, because it did not aver that the persons entertained were not lodgCommonwealth v. Maxwell, 2 Pickering, 139; Rex v. Dove, 3 Barnewall & Alderson, 546. See Commonwealth v. Tuck, 20 Pickering, 362, 363. An English statute makes it penal for any person, 'other than the persons employed in his Majesty's mint,' &c., to make or mend any instrument for coining. This exception must be negatived in an indictment. The want of such authority is part of the description of the offence itself." 1 East P. C. 167. So the omission of an executor to file the will of his testator was not the penal matter; but his unexcused omission. Smith v. Moore, 6 Greenleaf, 274. ers. "These few examples are sufficient to illustrate the meaning and the reason of the rule above stated. The reason is simply this, viz., that unless an exception in the enacting clause is negatived in pleading the clause, no offence, or no cause of action, appears in the indictment, or in the declaration, or no defence on the face of the plea. The case provided for, in the clause pleaded, is not made out on the record. But when the exception or proviso is in a subsequent substantive clause of the statute, the case provided for in the enacting clause may be fully stated, without negativing the subsequent exception or proviso. A primâ facie case is stated; and it is for the party, for whom matter of excuse is furnished by the statute, to bring it forward in his defence. "It is among the rudimental principles of pleading, that it is not necessary to allege matter which would come more properly from the other side; that is, it is not necessary to anticipate the adverse party's answer, and forestall his defence or reply. "Tis like leaping,' as Hale, C. J., said, 'before one come to the stile.' 1 Ventris, 217. Thus, it is unnecessary, in declaring on a bond, to negative the performance, by the defendant, of its conditions; and so of all other matters of defeasance. It is only when the matter is such, that its affirmation or denial is essential to the apparent, or prima facie, right of the party pleading, that it must be affirmed or denied by him in the first instance. See Bunbury, 177; Espinasse on Penal Statutes, 95; 1 Chitty Crim. Law, 284; Stephen Pl. 350, 352; Williams v. Hingham Turnpike, 4 Pickering, at p. 345; Gould Pl. 178 et seq.; Purcell Crim. Pl. 47. There are two cases in the old books, which, if not investigated, appear to contradict the rule above mentioned. The statute 1 Eliz. ch. 2, s. 14, directs that every person inhabiting within the realm,' &c., shall diligently and faithfully, having no lawful or reasonable excuse to be absent,' endeavor themselves to resort to their parish church, &c., upon every Sunday, &c., upon pain of punishment by the censures of the church, and also upon pain that every person so offending shall forfeit, for every such offence, 12. to the use of the poor of the sarie parish. In Ann Mannock's case, Godbo't, 148, it was decided that it was not necessary to allege, in an indictment on this section of the statute, that the defendant inhabited within the realm, &c. No reason is assigned, except " that if it were otherwise, it ought to be shewed on the defendant's part.' In Elizabeth Dormer's case, 2 Leonard, 5, it was held not to be necessary to allege, in the indictment, that the defendant had no lawful or reasonable cause to be absent. It was said, the excuse should come from the defendant. And it is as serted in some of the books of most frequent reference, that under the statute 1 Eliz. ch. 2, it is not necessary to negative the excep tions in the enacting clause. Bacon Ab. (Gwillim's ed.) Heresy, D. 7, in the margin; Bacon Ab. Indictment, H. 3; 1 Hawkins P. C. (Curwood's ed.) 373; 2 Ib. 343; 1 Chitty Crim. Law, 283, 284. "It will be found, however, that by statute 29 Eliz. ch 6, s. 5, passed before the decisions in Godbolt and in Leonard, the indictment of every such offender,' against the statute 1 Eliz. ch. 5, s. 14, mentioning the not coming of such offender to the church of the parish, &c., shall be sufficient in the law; and that it shall not be needful to mention in any such indictment, that the party offending was or is inhabiting, &c. But if it shall happen any such offender then not to be within this realm, &c., that in such case the party shall be relieved by plea to be put in, in that behalf, and not otherwise' "It is very clear, that although the stat ute not only warranted but required the two decisions above stated, yet that neither Sergeant Hawkins, nor his late editor, nor the compiler nor editor of Bacon's Abridg ment, had any knowledge of it. Some eminent modern judges, English as well as American, seem also not to have been aware of its existence. Mr. Justice Buller, in particular, would not have invoked 2 Hawkins's Pleas of the Crown, 243, to the aid of Baxter's case, hereafter to be noticed, if he had known or recollected this statute. See 1 East P. C. 18; 2 Chitty Crim. Law, 20, note d: 1 Starkie Crim. Pl. (2d ed.) 176; The State v. Barker, 18 Vermont, 198. "There are also two decisions, made by the twelve judges in England, which, at first view, may seem to contradict the rule that requires exceptions in an enacting clause of a statute, to be negatived in pleading. The statute 48 Geo. 3, ch. 129, now repealed, enacted that every person who should steal money, goods, &c., from the person of another, without such force or putting in fear as is sufficient to constitute the crime of robbery,' should be liable to be transported. "In Rex v. Pearce, Russell & Ryan C. C. 174, and in Rex v. Robinson, Russell & Ryan C. C. 321, the judges held that it was neither necessary nor proper, in an indictment on this statute, to negative the force and putting in fear; that the words, 'without force,' &c. were to be understood not charged to be done with force, &c. If the force, &c., had been negatived, proof of force, &c., would have entitled the defendant to acquittal, and he would have been detained for presentment on a charge of robbery; and if convicted of robbery, he must have been sentenced to execution, instead of transportation. Under this construction of the statute, it is obvious that the doctrine above considered was not impugned by these decisions; and doubtless the true intentions of Parliament, as to the mitigation of punishment, were thereby effected. The case of Rex v. Baxter, 2 East P. C. 781; 2 Leach C. C. (4th ed.) 578; 5 Term R. 83, is less easily brought within the established principle that regulates the neg ativing of exceptions. By statute 22 Geo. 3, ch. 58, 'in all cases where any goods or chattels shall have been feloniously taken or stolen (except where the person actually committing the felony shall have been al ready convicted of grand larceny, or some greater offence), every person who shall buy or receive any such goods or chattels, knowing them to have been so taken or stolen, shall be held and deemed guilty of, and may be punished for, a misdemeanor, and shall be punished by fine, &c., although the principal felon be not before convicted of the said felony, and whether he be amenable to justice or not.' "Upon an indictment on this statute, it was held by a majority of ten of the judges in Rer v. Baxter, ubi supra, that it was not necessary to aver that the principal offender had not been convicted. And so the law is |