ALEXANDER, L. C. B.-I cannot entertain any doubt that these are candles within the meaning of this act of parliament; they can be described as nothing else, and were not called by the witnesses by any other name. They are not finished candles undoubtedly; but I know no other name by which to designate them. There are many acts of parliament by the doing of an act without any particular intent, is made the subject of a penalty. Many such things are enacted as matters of regulation, to prevent the possibility of an approach to fraud; and in those cases, whatever may be the intention of the party, the act is subject to a penalty. But such should be clearly expressed, and not left as matter of doubt. In this instance, however, it is left in doubt; for even upon the critical construction of this clause, the intent to deceive his majesty pervades the whole, and is immediately connected with the imposition of the penalty; nor does the introduction of the words "in every such case respectively," alter this construction. In order to make the act of mixing, or of removing candles, an offence independently of the intention to defraud his majesty, and to subject the party so acting to a penalty, it should be clearly expressed by the act of parliament, which in this case it is not.

GARROW, B.-I am clearly of the same opinion upon both the points. With respect to there being a long course of precedents in favour of what is contended for on the part of the Crown, it will be remembered that this Court has been under the necessity, very lately, of reversing a judgment upon a case, where, as it was said, the current of authorities had been uniformly in conformity with what had been there adopted (a).

(a) Rex v. Morley, ante, p. 221.

1826.

ATT.-GEN.

v.

BARRELL.

1826.

ATT.-GEN.

t'.

BARRELL.

If the act of parliament had simply forbidden the three things, subject to a penalty, there might have been some ground for the argument in behalf of the Crown, because it might have been said, that the legis lature had taken upon itself to declare that no one could commit either, except with an intent to defraud his Majesty; and that, therefore, by the commission of either, the intention to defraud his Majesty should be inferred; but where, as in this instance, the act of parliament provides, that no one shall mix weighed with unweighed candles, or fraudulently remove candles, or fraudulently conceal candles, with intent to defraud his Majesty; and that in every such case respectively, the party so acting shall be subject to a penalty; it seems to me that the intention to defraud over-rides the whole clause.

HULLOCK, B.-When I first read the section of the act of parliament upon which this question turns, I certainly entertained some doubt upon the first point in the case; because the section states that no person shall mix or mingle candles which have not been duly weighed, and I thought, er vi termini, by virtue of that expression," duly weighed," that it meant the mingling of candles which had arrived at that state of maturity, which, in pursuance of the notice, they were to acquire before they were saleable in the market. What is, or is not a candle is scarcely a question of law; although bad, they are still candles: and if a man, having given a notice to dip six times, has an opportunity to remove candles dipped but three times, and does so, he is certainly guilty of fraud. With respect to the second point, it appears to me that the construction which the Lord Chief Baron has put upon this act of parliament, is that which ought to prevail. I cannot put any con

1826.

V.

BARRELL.

struction upon the words "that then and in every such case respectively," but by referring them to the mixing ATT-GEN. of candles before they have been duly weighed, as well as to the other parts of the clause. The sound construction of the clause which is penal in its consequences, although merely a regulation for the safety of the revenue, is, that the intent to defraud his Majesty is applicable to each member of the clause, and that such intention is necessary to constitute each offence. There may be other intents in the removal of candles, than that of defrauding his Majesty, which shews clearly that the legislature contemplated the intent as a necessary ingredient of the offence. It is conceded, that where a particular intent is essential to the constitution of the offence, that that intent must be charged upon the information; and not being so charged upon the fourth count, that count is consequently bad.

VAUGHAN, B.-I agree with the Lord Chief Baron and my brothers in the construction which they have put upon this clause. It is true, that it creates three several offences, but still the question is, whether the latter part of the clause does not over-ride them all, and whether, in order to constitute the offence, the intention must not be charged on the information. Upon that part of the case I conceive that there can be no doubt. It is conceded, that if the intent be part of the offence, it must be charged upon the record; and I think that it is absolutely necessary to constitute the offence. The word "respectively" would obviate any doubt, if any existed; for the penalty is incurred in every such case respectively. Not in the last only, but in each of the preceding cases, the party acting contrary to the provisions of the statute, with the intent to deceive his Majesty of the duties, is subjected to the

1826.

ATT-GEN.

v.

BARRELL.

penalty. With respect to the other point, it is sufficient that the witnesses described these things as candles during the trial, added to which we have the legis lative construction of the word candle, which puts the question beyond doubt.

Rule absolute for arresting the judgment upon

the fourth count.

Tuesday, January 23.

THIS was a rule calling upon the defendant to shew A corporator

who has voted at an election

officers, is not a competent

cause why an information in the nature of quo warranto should not be filed against him, for usurping the office of corporate of free burgess of the borough of Ipswich. The rule was granted upon the affidavit of one Clark, setting forth relator to impeach that the following facts:-According to the prevailing charter election, on the of the borough of Ipswich there are two bailiffs, elected ground of an objection to annually on the 8th of September, for the good govern- the presiding ment of the town. It has always been the custom for without shewofficer; at least the old bailiffs to preside as returning officers at the court ing that he was ignorant of the holden on the 8th September, for the election of the new objection when bailiffs and other officers. At a court holden on the 8th he voted at the election. September, 1824, A. and B., the old bailiffs, presided as bailiffs and returning officers, and Seckamp and Hummond were elected bailiffs. In Easter term, 1825, inforVOL. IV.

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