1823.

Ex parte

liable to punishment. The statute on which the convie tion is founded, makes it an offence for any person to be found carrying, &c. any foreign brandy, &c. " subject JOHN SMITH. to forfeiture under that act, or any law or act relating to the revenue of customs or excise.” The offence described on the face of the conviction is, the carrying and conveying a quantity of brandy" liable to forfeiture;" but it does not state any ground of forfeiture, nor does it refer to any law or statute by which, under the circumstances described, it would be forfeitable. It is quite consistent with this conviction that the carrying and conveying alleged was an innocent act, or at all events, that it was not punishable under any act relating to smuggling. The conviction therefore, is bad; first, for not shewing that the carriage and conveyance stated was against the form of some specified statute relating to smuggling; and, second, in not shewing that the brandy itself was liable to forfeiture by any statute relating to the revenue of customs or excise.

Copley, S. G., contra. It is quite clear that if the conviction had said, that the brandy was liable to forfei ture "under the acts relating to the revenue of customs and excise," it would be free from objection. The ques tion then is, whether the conviction in its present form is not equivalent to that statement, The description of the offence is in having been found carrying and conveying" seven gallons of brandy in two casks, called 'halfankers,' then and there subject and liable to forfeiture, the said offence being by him committed against the provisions of the acts of parliament made and passed for the prevention of smuggling." That statement is equivalent to "acts relating to the revenue of customs and excise." The brandy must be liable to forfeiture under some act relating to the revenue of customs or excise. It is so

1823.

stated to be; for the offence is said to be committed against the acts for the prevention of smuggling, and con'Ex parte JOHN SMITH. Sequently against the acts relating to the revenue of customs or excise. But the statement of the fact that the brandy was carried and conveyed in half-ankers clearly shews, that it was liable to forfeiture under the statutes for the prevention of smuggling; and it is quite unnecessary to specify under what particular statute it was forfeitable.

ABBOTT, C. J.-I am of opinion that this conviction is bad in form, and must be quashed. The general rule as to convictions is, that the specific fact which forms the ground of forfeiture should be stated, in order that the Court may see that the penalty has been properly imposed, and be quite sure that the convicting Justice bas not mistaken the law. If the conviction had stated the circumstances under which the brandy was imported, that it was imported in a certain manner, in casks of a certain size, which was contrary to law, we should then know that the carriage of it on land in such casks would render it liable to forfeiture; but carrying and conveying brandy on land may be liable to forfeiture for various reasons, and therefore it was necessary to shew on the face of this conviction why the brandy in question was forfeitable. It is stated certainly as a fact, that the brandy was contained in two casks, called "half-ankers;” but it is not said how it was imported,—that it was imported in those casks. It might have been imported in casks of an hundred gallons, and, having paid the duty, found its way into half-ankers. No fact is given, which plainly imports that the brandy was liable to forfeiture. The general rule I have mentioned is, a sound one, and ought not to be departed from.

BAYLEY, J., concurred.

1823.

Ex parte

HOLROYD, J.-The general rule referred to by my JOHN SMITH.

Lord Chief Justice, is equally applicable to convictions

on the Game Laws. It is not sufficient, in such cases, to state that the party was not qualified by the laws of the realm to do so and so, though the very words of the act of parliament are pursued, but it must appear whether the convicting Justice has drawn the right conclusion from the facts, by negativing all the circumstances which are necessary to constitute a qualification. In convictions on the excise or customs laws, if the particular facts and grounds of forfeiture are stated, it is not necessary to name the statute by which the penalty is given, but merely to state that the offence is contrary to the statute in that case made and provided, and the Court will then see whether the Justice has drawn the right conclusion. Now here no sufficient facts are stated to support the conviction (a).

(a) Best, J. was absent.

Conviction quashed (b).

(1) See 3 Geo. 4. c. 110, in which a form of conviction is given.

ASTLE and Another v. THOMAS and BALDWIN.

In the parish of B., consisting of the township of

ASSUMPSIT by plaintiffs, churchwardens of the township of Burton-upon-Trent, in the parish of Burtonupon-Trent, against defendants, late churchwardens of the B., and seve ral hamlets,

two churchwardens were appointed by the township, and two by the rest of the parish, who made separate rates for their own divisions respectively:-Held, that the acting churchwardens for the township, might maintain assumpsit against their predecessors, for a balance remaining in their hands, without joining the other chuchwardens as plaintiffs, or defendants, and without proving that their appointment was strictly legal.

VOL. II.

1823.

ASTLE

บ.

THOMAS.

same township, for money had and received to the use of plaintiffs as such churchwardens. Plea, by defendant Thomas, non assumpsit; and by defendant Baldwin, the nonjoinder of two other persons, I. T., and I. H. as defendants. Issue on both pleas. At the trial before Park, J., at the last Assizes for the county of Stafford, the facts were these: The parish of Burton-upon-Trent consists of the township of Burton-upon-Trent, and of several hamlets. The parish has always had four churchwardens, two appointed by the township, and two by the hamlets, jointly. The parish has only one parish church, which is situate within the township. The two sets of churchwardens have always made separate rates. At the time when the defendants went out of office, a balance of 18. was remaining in their hands. I. T., and I. H., were the churchwardens for the hamlets during the same period that the defendants were churchwardens for the township. It was objected on the part of the defendants, that the four churchwardens appointed for the parish formed one corporate body, and therefore that the action ought to have been brought by all the present, against all the former churchwardens, The learned Judge, however, overruled the objection, and the plaintiffs, under his direction, obtained a verdict for the balance of 187.

Campbell now moved for a new trial, upon the ground, that the learned Judge had mis-directed the Jury in point of law. It must be admitted, that no common fund was ever raised in the parish, and that it was in evidence that the churchwardens for the township, and those for the hamlets, had constantly made separate rates on account of their own respective divisions. But that fact will not authorize either of them in suing, nor will it render them liable to be sued, alone, because it has been decided, that by law there must be one fund for the whole parish, and

that separate bodies of churchwardens, in one parish, cannot legally make separate rates. Rex v. Gordon (a). [Bayley, J. That case is materially distinguishable from the present, because the rate there in dispute was a poor rate; there may exist an immemorial custom for a church rate to be raised in a particular way, but there cannot for a poor-rate, which has been in existence only since the reign of Elizabeth.] Still, the plaintiffs cannot maintain this action, because they sue as churchwardens of the township; there cannot be an appointment of churchwardens for a township; it must be for a parish; consequently, if the plaintiffs have been elected and sworn as officers of the township, they have been illegally appointed, and cannot stand before the Court in the character which they have adopted; if, on the other hand, they were appointed for the parish, they have mis-described themselves in the first place, and they should have joined the other two churchwardens as plaintiffs in the action. Upon either view of the case, therefore, the defendants are entitled to a new trial.

ABBOTT, C. J.-I think we are not at present called upon to decide whether the appointment of these plaintiffs was strictly legal, or not; we are bound to presume that it was until the contrary is clearly shewn. It is in evidence, that the two districts for which the several sets of churchwardens acted kept two separate purses, which were supplied by separate rates, and that there was no common fund in the parish. The parish, therefore, considered at large, has suffered no injury by this sum of money not being paid over, but the injury done is to that portion of the parish, by which, and for the benefit of which, it was raised. It seems to me, therefore, that as the plaintiffs appear cloathed with a character which entitles them

(a) 1 B. & A. 524.

1823.

ASTLE

บ. THOMAS.