that the defendant might be brought before us, &c. Chitty against the conviction. By the 5 G. 3. c. 14. s. 3., any person that shall kill or destroy fish in any river or stream, pond or pool, or other water, being lawfully convicted, shall forfeit and pay, for every such offence, the sum of 5l. to the owner of the fishery. The act then goes on to point out the mode of proceeding by information before a magistrate, and in the fourth section, enables the owner of the fishery to maintain an action of debt for the penalty. Inasmuch, therefore, as the penalty is payable to the owner of the fishery, it ought clearly to appear, both upon the information, and upon the evidence, that the proceeding originated with him. It is true, that in this case, it is stated in the memorandum, that it was at the instance, and on behalf of the owner of the fishery; but that is only the language of the magistrates, and there is nothing stated in the information, or in the proof, to shew that it originated at her instance. And he cited Rex v. Corden (a), as conclusive on this point. 1819. The KING against DAMAN. (a) 4 Burr. 2279. Casberd, 1819. The KING against DAMAN. Casberd, contrà. It does sufficiently appear here, that the prosecution was commenced at the instance of the owner of the fishery; for it is stated, that Sir H. Fane, at the instance and on the behalf of the Honourable Anne Fane, came before the justices and exhibited the information; at the conclusion of which, Sir H. Fane, on behalf of Anne Fane, prays judgment. Inasmuch, therefore, as it appears upon the face of the conviction itself, that the information was exhibited at the instance of the owner of the fishery, and also that the judgment was prayed on her behalf, there is no ground for this objection. These circumstances did not exist in the case cited. BAYLEY J. In the case of a conviction, nothing can be supplied, either by intendment or argument; and therefore we must, on the present occasion, look only to the express words of the conviction, and of the act of parliament. The act was passed for the more effectual preservation of fish, and it directs that the offender shall forfeit for every offence 51. to the owner of the fishery, and gives him a power of obtaining the penalty either by information or action. In the latter case the proceeding must be in his name; and in the former, therefore, it follows, by necessary intendment, that it must appear on the face of the proceedings, either that the penalty is sued for in his name, or at his instance. And it is not sufficient that this fact should be stated by the justice in the conviction, but it must be also embodied in the information, and established by the proof. In this case, the magistrates state in the conviction, that Sir Henry Fane, al at the instance and on the behalf of the Honourable Anne Fane, lady of the manor, &c. appeared before them. Now it does not appear upon what authority that fact is stated, and there is nothing proceeding from the party which leads to that conclusion. Then, in the information it is stated, that Sir H. Fane, on the behalf of A. Fane, prays the judgment; but it is not stated that he does it at her instance, and there is amaterial distinction between the two phrases. For the latter necessarily implies a previous communication, which the former does not. Then comes the appearance of the defendant, and his plea of not guilty after hearing the information read. Now as the information is wholly silent as to the person at whose instance the charge is made, the defendant is unapprized of that circumstance; and it is to be observed, that if that fact had formed part of the information, the plea of not guilty would have put it in issue, and made it necessary for the prosecutor to prove it. I am, therefore, of opinion, that the act of parliament requires the information to be in the name, or at the instance of the party grieved, and that that must appear both in the information, and in the evidence stated in the conviction. And that not having been done in this case, this conviction must be quashed. HOLROYD J. I am of the same opinion. All the facts necessary to subject the party to the penalty imposed by the act of parliament, must appear upon the information, and be established by proof. It is indeed here stated, that the person applying, appeared on the behalf of the lady of the manor, but that is only the language of the justices, and the information does not contain any allegation, that it is prosecuted at her instance. 1819. The KING against DAMAN. 1819. The KING against DAMAN Saturday, Where a master no immediate occasion for his apprentice's instance. The case of Rex v. Corden is an authority to shew that that is necessary. BEST J. It is not clear that the lady of the manor has ever adopted this proceeding; and she may, for any thing that appears here, still bring an action for the penalty. Now the party ought not to be oppressed by two prosecutions for one offence. The conviction is therefore bad, and ought to be quashed. Conviction quashed. The KING against The Inhabitants of SAINT mariner, having WILLIAM Ward, and Elizabeth his wife, and one child were removed by an order of two justices from the parish of Whitstable in the county of Kent, to the parish of St. Mary Bredin in the city and county of the city of Canterbury. The sessions, on appeal, confirmed the order, subject to the opinion of the Court of King's Bench, upon the following case. service, the vessel being then in dock, offered either to turn him over to another master for a time, or to let him go and the appren tice said he would go back to school and learn navigation; and accordingly did so, and resided back to school, The pauper William Ward, was bound by indentures, dated in October, 1807, to John Hunter, master of the Stranger, West Indiaman, for five years. The premium paid was 40%., and the pauper was to receive from Hunter 8. wages for each year's service, making 40l. for the five years, out of which the pauper was to find his own clothing. He made three voyages in the residence under Stranger to Montego Bay, and back to London. At the indentures, the expiration of the third voyage, the ship wanted repair, and was laid up in Shadwell dock. When the ship went into dock, the pauper slept at his master's above forty days there: Held that such resi dence was not a and that he did not thereby gain a settlement. house, in the parish of St. Matthew, Bethnal Green. After he been there some time, his master told him, that he had not then any employment for him, and asked him if he would like to be turned over to another master, or to go back to school at Canterbury, till the ship was ready. The pauper said, that he would rather go back to school and learn navigation. He accordingly went to Canterbury, to his guardian, (his parents being dead), and was told by his guardian to go to Mr. Quested's school, where the pauper had formerly been educated. He accordingly went to Mr. Quested's school, which is in the parish of St. Mary Bredin in Canterbury, where he stayed and slept for nearly twelve months, and then ran away, and never returned either to the school, or to his master, John Hunter. The master did not agree to pay, nor in fact did he pay any part of the expense of the pauper's board or schooling, or of the wages after the pauper had left Bethnal Green, but the whole of the expense was defrayed by the pauper's guardian, out of money which had been left to the pauper. At the time when the pauper ran away from Quested's school, about one year and-a-half of the term of five years, which he was by indenture bound to serve the said John Hunter, remained unexpired. Bolland and Baker, in support of the order of sessions. The words of the stat. 3 W & M. c. 11. are, "that if any person shall be bound an apprentice by indenture, and inhabit in any town or parish, such binding and inhabitation, shall be adjudged a good settlement." Service, therefore, is immaterial; the only thing required is, that the residence should be in 1819. The KING against The Inhabitants of ST. MARY BREDIN, CANTERBURY. pur |