tember and the 1st day of April, or after eight P.M. and before six A.M. at any other time in the year, make, &c. any light, &c., or signal, for the aid of smugglers. The offence of doing so was declared to be a misdemeanor. The indictment stated that the defendants, between sunset on the 8th and before sunrise on the 9th of March, i. e. on the morning of the 9th, about three o'clock, did make, aid, and assist in erecting certain lights, fire, &c. This was proved in evidence. But it was objected, that there was here wanting a substantial averment of the time in question being between the 21st of September and the 1st of April, because the prosecutor was not bound to the day laid, but he might prove the offence to have taken place in any other day, or in any other month. Therefore, as time was of the essence of the offence, there should have been a distinct averment in the words of the statute. But Littledale, J., overruled the objection. The objection could only have been made properly (as indeed it was) in arrest of judgment, and even in that step judicial notice must be taken that the day averred in the indictment was, in fact, within the period mentioned in the statute. "What burden of proof that throws upon the prosecutor," said the learned Judge, "it is not necessary to inquire; upon the face of the indictment the offence is charged upon a day between September and April" (e).

An indictment upon 9 Geo. IV. c. 69, stated that the offence was committed "on the 7th day of October, in the year but the objection being taken after verdict, it was held, that the fault was that of time imperfectly stated, and so was cured by verdict under 7 Geo. IV. c. 64, s. 20 (ƒ).

Where a statute made an offence triable in the county where the prisoner was apprehended, it is not a good objection that the day laid in the indictment is before the day on which the statute came into operation, provided that the facts charged were in reality committed before that day (g).

(e) Moo. & M. 163, R. v. Brown and others. So it is as to place, 1 Moo. C. C. 44, Napper's case.

(f) Lew. C. C. 232, R. v. Hall and another. By the Judges. (g) 1 Moo. C. C. 298, R. v. Treharne.

But where, in a conviction under the Beer Acts, for keeping a house open at times prohibited by the order of justices, there was no mention of the time when the beer-house was irregularly kept open, nor, indeed, of the order of justices, the conviction was held bad. For time was of the essence of the offence (h).

It is observable, that the information and proceeding before the magistrate is the commencement of the prosecution, and not the indictment. And it was held to make no difference that the commitment was for counterfeiting the current money of the kingdom, and the indictment for colouring a piece of base coin. The variance was immaterial (¿). But of course, if there be any doubt as to the time of apprehension, or as to the nature of the charge against the accused, when apprehended, the limitation as to time will prevail in favour of him (k).

A date of a license for a foreigner to trade was indorsed as on the 17th of September. The real date of the clearance was on the 20th. The condition was, that the date of the ship's clearance should be indorsed, and the defence upon the policy was, that it had not been truly indorsed. The Court seemed to be of opinion that the condition had been complied with (7). If a guarantee be dated on the 7th of a month, it is no objection that the contract for the goods, of which the payment is guaranteed, was made on the 6th, if there is no delivery of such goods until the 7th (m). Writs of inquiry, directed to be executed on a particular day of the week and month, will not be set aside if there be a discrepancy between the day and month, unless there be an affidavit that the defendant has been misled. As where the notice was for Tuesday, the 14th of January, whereas that day fell on a Thursday,-Tuesday was rejected as surplusage (n).

(h) 8 Ad. & El. 124, Newman v. Lord Hardwicke. 3 Nev. & P. 368, S. C. (i) East P. C. 186, Willace's case. S. P. upon an indictment for night poaching, 1 Den. C. C. 217, R. v. Brooks and another, decided upon the authority of R. v. Willace.

(k) Russ. & R. 363, R. v. Phillips and another. (1) 3 Taunt. 554, Morgan v. Oswald.

(m) 2 Stark. 426, Simmons and others v. Keating. (n) 3 Bos. & P. I, Batten v. Harrison, one, &c. Eldon v. Haig.

S. P. 1 Chit. Rep. 11,

time.

With reference to the calculation by time, in the case of a Measure of broken contract, it has been held, that the amount must be damage ascertained by the difference between the price which the defendant contracted to pay, and that which might have been obtained on the day when the contract ought to have been completed (o). Hence, where the defendant gave notice on the 21st of October, that he would not take certain shares bought on the 20th (though after business hours), it was held that the measure of damages was limited to the time between the 20th and 22nd of that month (p).

In many cases, and especially where there are no negative Time words forbidding an act to be done at another time than that directory. mentioned in a statute, or otherwise, the time need not be accurately kept, and the act is deemed directory. As where a mandamus to justices to appoint overseers was dated on June the 13th, although by 43 Eliz. c. 2, overseers are to be appointed within a month after Easter (g). So under the 54 Geo. III. c. 91, s. 1, which directs the appointment of overseers to be made on the 25th of March, or within fourteen days next after the said 25th day of March, an appointment made after the fourteen days was held to be a good appointment, the words of the act being directory, not mandatory (r). So the 5 Geo. IV. c. 84, s. 17, with reference to the continuance of a convict in prison, has been held directory only, and the convict was held not entitled to his discharge (s). So upon the election of an officer under a chapter, the House of Lords held the charter merely directory in this respect (t). A meeting of trustees to elect a clergyman was ordained to be within four months after the death of an incumbent. This provision was held not to prevent their meeting after that time (u). And the Lord Chief Justice cited the case of the borough of Lansdowne, in Ro.

(0) 9 B. & C. 145, Boorman v. Nash.

(P) 5 Railw. Ca. 85, Pitt v. Flather. S. C. 16 L. J., Q. B. 366.

(q) 7 Mod. 393, R. v. Sparrow and others. 2 Sess. Ca. 184, S. C. S. C. 2 Str. 1123. S. P. in the case of binding apprentices by justices, R. v. Morris, cited 7 Mod. 395. S. P. 2 Salk. 473, Anon.

(r) 2 D. P. C. 1001, R. v. Sneyd.

(s) 16 L. J., Q. B. 289, R. v. Brenan.

(t) 3 Bro. P. C. 167, R. v. Truro.

(u) 1 Ves Sen. 413, Attorney General v. Scott.

Ab., as an authority, where the election was to be by a select number within eight days, and they did not meet till long afterwards (v).

In holding sessions of the peace, the Court has held, that the time in statutes is merely directory. So that where, by 54 Geo. III. c. 84, the Middlesex quarter sessions were directed to be holden in the week next after the 11th of October, but it was not enacted that they might not be holden at any other time, the Court decided that the justices were not confined to the week above mentioned; and they referred to the statutes 12 Rich. II. c. 10, and to 2 Hen. V. st. 1, c. 4, and to Lord Hale's opinion (w), that the earlier statutes upon the subject were directory only (x).

Under the old statute of 25 Geo. II. c. 37, concerning the execution of murderers, the day of execution was held to be merely directory, and where a wrong day was awarded, the sentence, being amended during the assizes, was held correct (y).

The rule which requires an indorsement of the day of the month and year on writs is merely directory, and, for want of that indorsement, the Court would not set aside the service of process (z). Nor, under the statute, need the indorsement be dated (a). But by the rule of Court, 3 Wm. IV. the day of the week and month must be indorsed on the writ, otherwise the plaintiff will not be at liberty to enter an appearance.

A bond was conditioned for the assessment of damages by arbitration upon the working of a mine by the obligor,-the account of damages was to be made up every two months. The damage was not so calculated; and debt being brought

(v) 1 Ves. Sen. 415.

(w) 2 Hale P. C. 50.

(x) 7 B. & C. 6, R. v. Justices of Leicester.

(y) Russ. & Ry. 230, R. v. Wyatt.

(z) 1 Cr. & J. 563, Millar v. Bowden. 2 Tyr. 112. 1 Price P. C. 104.

(a) 1 Cr. & M. 806. 2 D. P. C. 81, Webb v. Lawrence; and see 1 Wils. 91.

upon the arbitration bond, it was urged for the plaintiff, upon a motion to set aside the nonsuit, that the submission was not imperative, but merely directory, in order to save the plaintiff the inconvenience of frequent calculations. But the Court were of a different opinion, considering that it was important for the defendant to know his assessment of damages as soon as possible after the alleged injury, and the rule was discharged (b). So where a public company were authorized and required to do certain acts within three calendar months, the statute became compulsory (c). The general principle running through these cases is the public benefit; other more recent authorities adhere to the same principle, whether the time be construed as directory or imperative (d).

when con

payment strued

Where there is a retrospective date to a statute, and a Legal time, certain act must have been done in order to incur the of a duty, the words "shall be," or "shall have been," refer back to the time to the retrospective date, so as to make the tively. duty attach (e).

A pauper had been receiving relief continuously from 1843. The residence in the parish had been from April, 1839. The order of removal was in May, 1847, and the statute, respecting the irremovability of the poor after a residence of five years, passed in 1846. If the statute were to be construed retrospectively, it worked a disability as to the dwelling of this pauper in the parish. For by 9 & 10 Vict. c. 66, s. 1, the time during which any person, amongst other matters, shall receive relief from any parish, shall for all purposes be excluded from the computation of time therein before mentioned. This time in the act means the term of five years' residence before the warrant of removal. Hence, as the pauper had been at different periods continuously receiving relief from 1843if those times were deducted from the residence, there would

(b) 9 Bing. 32, Stephens v. Lowe.

(c) 10 B. & C. 349. Conservators of the Rivers Tone v. Ash.

(d) See 5 Q. B. 310, Bosanquet v. Woodford. Dav. & M. 419. 13 L. J., Q. B. 93, S. C. 12 M. & W. 655, Movard v. Dunn. 1 Dowl. & L. 642.

13 L. J., Ex. 324.

(e) 8 Bro. P. C. 196, Hume v. Haig, in error.

retrospec