order, in which the signature of one of the justices was

illegible.

1846.

The QUEEN

v.

The Justices of

COLERIDGE, J.---I think this rule must be absolute MIDDLESEX. in its terms. I have no doubt the sessions had jurisdiction, and ought to have heard the appeal. They had jurisdiction if they were satisfied that in fact the order had been made and an appeal entered against it. It is said that the appeal is not against this order. That, however, is a question of fact, and I think it was quite competent for the sessions to ascertain the intention of the parties; and to do so they would have properly looked at the document itself, and if they found that the signature to the copy served was so written that no two persons could agree upon it, they might fairly have concluded that the appeal was intended to be against the order before them, and therefore that they had jurisdiction to hear it.

Rule absolute.

1846.

May 7.

The QUEEN v. The Inhabitants of NORBURY.

In the jurat of A CERTIORARI had been obtained on affidavit, sworn

an affidavit,

sworn in the country, for

a certiorari to bring up an order of sessions, the

commissioner's name should

be preceded by

the words

"before me;"

and the omission of them

is a fatal defect, and not a mere irregularity.

before a commissioner in the country, March 16, 1844, to

bring up an order of sessions confirming an order of removal subject to a special case. The jurat of the

affidavit did not contain the words "before me" before the commissioner's name; and, on the authority of Regina v. Bloxham (a), a rule nisi had been obtained, April 30, 1846, for quashing the certiorari.

Neale now shewed cause.-The case of Regina v. Bloxham (a) has lately been brought under the consideration of the Court of Exchequer in Empey v. King (b), where the jurat of an affidavit in support of a rule for an attachment "Sworn by the above-named defendant, &c. at my chambers, Rolls-gardens, Chancery-lane, this 19th day of November, 1844, E. H. Alderson," was held sufficient, as being consistent with the general practice. The omission of the words "before me" must either make the affidavit a nullity, or it only amounts to an irregularity. The case of Rex v. Emden (c) shews that the defect cannot render the affidavit a nullity. If the omission merely amounts to an irregularity, it is now too late to make the objection when about two years have elapsed since the certiorari was granted. In Ex parte Smith (d), Patteson, J., allowed the jurat of an affidavit to be amended.

1846.

The QUEEN

v.

The Inhabitants

Lord DENMAN, C. J.-I think the case of Regina v. Bloxham (a) was rightly decided: the case was very fully argued, and all the authorities on the subject were brought under the consideration of the Court, and it of NORBURY. does not appear inconsistent with the case in the Exchequer. In Ex parte Smith (b) my Brother Patteson permitted the amendment, seeing that the deponents had, in fact, been regularly sworn, but he rather doubts whether he did rightly. Here the affidavit does not appear to have been sworn before any one. Time may operate as a waiver of an irregularity, but this is not such.

PATTESON, J.-I think Regina v. Bloxham (a) was rightly decided, and I see no ground to overrule it. If time could cure such a defect, eight months would have done it there. In Empey v. King (c), the Lord Chief Baron expressly draws a distinction between an affidavit sworn before a Judge at chambers and one sworn before a commissioner.

Rule discharged.

(a) Antè, Vol. 1, p. 370.

(b) 2 Dowl. 607.

(c) 13 M. & W. 519.

1846.

Court of Exchequer.

EASTER TERM.

May 1.

The QUEEN v. WOODROW.

It is an offence AN information was exhibited under the 5 & 6 Vict.

under the 5 & 6 Vict. c.

93,

for a dealer to have in his pos

ated tobacco;

and personal knowledge that it was adulter.

ated is not requisite to constitute the offence.

c. 93, by order of the commissioners of excise, by W. Hedges, their officer, against T. F. Woodrow, a lisession adulter- censed dealer in tobacco by retail, for having in his possession 55 lbs. weight of cut tobacco, mixed with sugar and other saccharine matter. The information came on for hearing before the justices on the 25th of March, 1845, and was dismissed. The case was conducted at the hearing by W. Marks, an excise-officer, in the absence of Hedges, who was unable to attend; and as soon as the decision of the justices was pronounced, notices of appeal, required by the 7 & 8 Geo. 4, c. 53, s. 83, signed by Marks in his own name, and not as the agent of Hedges, were served on the different parties, and afterwards notice of trial of the appeal for the Midsummer sessions was served, signed by Hedges. At the trial of the appeal it was objected, that due notice of the magistrates, the appeal and of the trial had not been given; but the

The notices of appeal under the excise acts, the 7 & 8 Geo. 4, c. 53, s. 83, and the

4 & 5 W. 4, c. 51, s. 23, in

the case of an appeal by the excise, may be given by

the officer who

appears before

in his own

1846.

v.

WOODROW.

From the evidence it appeared that an officer of the excise had seized, in a drawer where the respondent The QUEEN kept his tobacco for the purpose of sale, 55 lbs. weight of manufactured cut tobacco, which was found to be adulterated with saccharine matter; that the tobacco had been adulterated in the course of manufacture, and that the respondent had purchased it of a manufacturer as genuine tobacco; and that he had no knowledge or cause to suspect that the tobacco he purchased, and which was seized, had been manufactured in any other way than as directed by law. The sessions dismissed the appeal, subject to the opinion, of the Court of Exchequer on two points:-1. Whether the notices of appeal and trial were sufficient? 2. Whether the respondent had been guilty of the offence charged in the information?

J. Wilde, for the Crown.-1. The stat. 7 & 8 Geo. 4, c. 53, s. 82, gives to any officer of excise who shall exhibit any information, and to other persons aggrieved by the judgment of the commissioners or justices, a right of appeal to the quarter sessions; and sect. 83 requires certain notices of appeal, which must be given immediately the judgment appealed against is pronounced. A further notice of trial is required to be given by the appellants one week before the appeal comes on to be heard. The 4 & 5 Will. 4, c. 51, was passed to amend the former act; and sect. 22 provides, that, in case of the death or absence of any officer of excise, in whose name any information may have been exhibited, the proceedings may be carried on by any other officer of excise in the name of the officer by whom the information shall have been exhibited. But sect. 23 is general in its terms, and enables any officer who conducts the proceedings to give notice of appeal.

VOL. II.

BB

N. S. C.