The information

1806.

versus

CRISPE

ABBOTT, in support of the rule. must be within three months after the offence commit- The KIN ted, but it does not so appear either in the information or the evidence; and it ought to appear by both. Here it is uncertain whether the words now last past' apply to the month or the year; and although it is within three months last past, yet that will not do. An allegation that it is within three months is not sufficient, unless a day is inentioned which is within three months; for, although you need not state the precise day of the fact, yet there must be some one day stated, and that ought to be within the time."

LAWRENCE, J. "Then, when it is expressly stated to be within three months last past, we must infer that it is beyond twelve months past.'

ABBOTT." In the evidence it is still more informal; for it states, that afterwards, to wit, on the 4th day of June, the party appears, without stating any year."

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LAWRENCE, J. "We are not got to the 4th day of June, 1806, and it is yet afterwards."

ABBOTT." But the conviction must be good now, in the same manner as it would be ten years hence, or in the year 1807."

LE BLANC, J. "There is a date to the conviction."! ABBOTT. "The date is not the day on which the con viction is made, but on which it is sealed."

"

LAWRENCE, J. Is it complete until they have signed and sealed it?”

LE BLANC, J. "Although they do not seal it on the same day on which they convict, yet they cannot seal it till after they have convicted."

ABBOTT. "The witness it is stated, went there on the

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1806.

The KING

versus

CRISPE

said 12th of May. Evidence is given, as appears by the record, in the presence of the defendant, but it does not appear, that, in his presence, the record of the information had been read over; or that any 12th day of May, was mentioned to the witnesses in particular to which the word suid,' in the evidence could refer. Then it must be taken, that the witnesses only said, on the 12th day of May they went to the malthouse."

Lord ELLENBOROUGH, C. J. " If, in any case, a witness had been asked did he do any thing on the 12th of May, it would have been immediately asked also, what 12th day of May he meant; and must so be taken to be explained."

ABBOTT. "If it were a correct mode of drawing a conviction to state that the witness deposed, that on the day mentioned in the conviction, to wit, the 12th day of May,' then the objection is not founded; but that is not the proper way of stating the evidence. It must be stated according to the fair substance of the evidence; and if that cannot stand, if taken by itself, it cannot be incorporated into a reference to the previous information,"

Lord ELLENBOROUGH, C, J. "It is taken down as he speaks with a reference to the premises. It is not a mere transcript of the words of the witness; for then it would be I,' in the first person. The premises in this case are the information. If there were a total omission of the reference, it would be the 12th day of May undefined, but here is a reference to the particular year."

ABBOTT, then stated another objection, that it was not stated, that the evidence was taken in the presence of the defendant.

Lord ELLENBOROUGH, C. J. "The conviction

1806.

These words The KING

states and the said Steffe Crispe is now here again called upon by us the said justices.' These words import sufficiently that it is in his presence; and, before, it is stated, that he pleads not guilty, whereupon we the said justices do now proceed to examine;' that is surely all at one time."

Аввотт. "Thereupon on the day and year last aforesaid;-That must be, on the 29th of May, 1805, for there is no other day and year mentioned."

Lord ELLENBOROUGH, C. J. "June, which is the month mentioned last before, must be in some year, and it incorporates, by reference, into that sentence the year in which the month of June must be."

ABBOTT. "The evidence does not prove the defendant to have been a maltster at the time of the summons. It states, that John Freeman, on his oath says, that the said Steffe Crispe is a maltster:" but the defendant might have been a maltster on the 4th of June, and yet not a maltster on the 12th day of May. It also states "that he surveyed the malthouse of the defendant, on the said 12th of May and found a floor of malt in operation very wet; but it does not state, that it was the defendant's malt which was then in operation, and a man may have a malthouse without being a maltster or maker of malt."

Lord ELLENBOROUGH, C. J. "Can a man have a malthouse without having it entered ?"

ABBOTT. "In common parlance he might be the owner or landlord of a malthouse, and yet not a maltster at that time. The offence is the wetting of corn and grain, making into malt, before it has been a certain number of days out of the cistern: but this is stated to be a floor of malt,which is not corn and grain making into malt, but malt itself in a perfect state."

versus CRISPE.

1806.

versus

CRISPE

Lord ELLENBOROUGH, C. J. "The words are a The KING floor of malt in operation.' That cannot be malt made, in its perfect state. This is the inartificial language of the witness. The words are, throughout, the said floor of malt,' that is, of malt in a certain stage of operation; and we must carry to the construction of this conviction the common sense with which men construe ordihary language. If a man speaks of a floor of malt, in operation, he does not mean that which is actually malt."

ABBOTT. "Here it is stated only, that it had been only four days out of the cistern; but, according to the statute, it should be the cistern in which it had been steeped two days for being made into malt. This would be true, as it is stated, if it were taken out of some cistern, where it had been wetted for brewing only. It states here, that it has been wetted, but not for what purpose, and the act of parliament speaks only of corn and grain making into malt."

Lord ELLENBOROUGH, C. J. Suppose a man says that he found another colouring a shilling; you would argue that it could not be a shilling."

FRERE, contrà, replied only to the objection that it did not appear that the defendant was a maltster at the time of the summons; that being the only objection with which the court considered him to be pressed. "The defendant must be taken to be a maltster at the time of the summons, or of the offence; for in the information, it is stated that he "was a maltster at the time of the offence hereinafter mentioned," and in the evidence it is stated that he is a maltster. In the King v. Tucke, on an information upon the statute 6 and 7 W. III. c. 11, against the defendant for profanely swearing he non existens servus, nec laborator, nec miles,

* 2 Lord Raym, 1386. 8 Mod. 366.

&c.sed, adtunc, existens generosus et ultra serdecim an

1806.

norum, &c. and the witness swore that prædictus Johan- The KING Res Tucke did swear, &c, that was sufficient,

Lord ELLENBOROUGH, C. J. He adinits the description generosus, but I think that his age should be proved,"

LAWRENCE, J." According to that case there is nothing necessary but for a man to appear, and then he admits every thing which is charged against him.” Lord ELLENBOROUGH, C. J. "The words import a description of the person, and the qualification must be charged with an addition. When he appears, he admits the addition, as if he omits to plead in abatement, but he does not admit the age. The case is right to the extent of the word generosus; but wrong as to the qualification of the age. You have certainly got a bad case as to one point. It is stated that the wit ness surveyed the malthouse of the defendant; Could he survey any thing but an entered malthouse?"

DAMPIER, amicus curia. "They cannot survey unless it is entered. They do not call it a survey, if it is not entered, but only a search, to see whether the law is evaded or not. Survey is a technical terin."

LAWRENCE, J. "In the case of the King v. Stone, ja which the court was divided as to their opinion, Lord Kenyon was of opinion, that, even of the negative of a qualification stated in the information, some prima facie proof should be given."

In the report in 8 Modern, 366, it is said that it shall be intended that he is a gentleman and also of 16 years of age, if so charged by the informer. It is said in the margin that the same case is to be found; 1 Sess. Cases, 354.

versus

CRISPE