Distinction between provisoes and exceptions. merely a proviso appended to it is repealed by implication (e). The substantial distinction between a proviso and an exception is that the former follows an enacting clause, and qualifies it in certain specified cases, while the latter is part of the enacting clause, and is of general application. If, therefore, an action, indictment, information, or conviction is based upon the words of any statute, a proviso need not be noticed by the plaintiff or prosecutor, but he must negative an exception. "Wherever," says Parke, B., "a statute inflicts a penalty for an offence created by it upon conviction before one or more justices of the peace, but there is an exception in the enacting clause of persons under particular circumstances, it is necessary to state in the information that the defendant is not within any of the exceptions. And it seems immaterial whether the exception be in the same section or in a preceding Act of Parliament referred to in the enacting clause. But where the exemption is contained in a proviso in a subsequent section or Act of Parliament, it is matter of defence, and, therefore, it is not necessary to state in the conviction that the defendant is not within the proviso" (f). Thus, where the Municipal Corporations Act (5 & 6 Will. IV. c. 76) imposed a penalty on any person acting as councillor after he became disqualified, but provided that no action for the penalty should be brought except by a burgess, it was held that, (e) Horsnail v. Bruce, L. R. 8 C. P. at p. 385, per Bovill, C.J. although this proviso was contained in the same section as the enacting words, yet, as it was in a subsequent part of the section, the plaintiff need not state in his declaration that he was a burgess (g). But where 24 & 25 Vict. c. 99, enacted that whosoever without lawful authority or excuse, (proof whereof was to lie on the party accused,) had in his possession any die impressed with the resemblance of either side of any current coin, should be guilty of felony, it was held that, though the burden of proof was shifted, the lawful authority or excuse must be negatived in the indictment (h). Even where it is provided that informations or complaints need not negative any exemption, exception, proviso, or condition, and that if they are negatived a prosecutor need not give any evidence in support of such an allegation, but the defendant must prove the affirmative, it has been held that an exception forming part of the enacting words of a statute must be negatived by a complainant. Thus, where the 11 & 12 Vict. c. 49, imposed a penalty on a licensed victualler selling drink on Sunday before a certain hour in the afternoon, except as refreshment for travellers, it was held that the burden of proving that liquor had been sold to persons who were not travellers was cast on the informer (i). (g) Simpson v. Ready, 12 M. & W. 736, 739, 740. (h) R. v. Harvey, L. R. 1 C. C. R. 284. (i) Taylor v. Humphries, 17 C. B. N. S. 539. The same construction was put upon similar words in the 2 & 3 Vict. c. 47, Davis v. Scrace, L. R. 4 C. P. 172. X Variance between Act and Schedule; the Act prevails. SCHEDULES. The only part of a statute which remains to be noticed is the schedule. If there is any variance or contradiction between the enacting parts of an Act and the forms contained in the schedule the enacting part must prevail, and "the form which is made to suit rather the generality of cases than all cases must give way" (k). The 8 & 9 Vict. c. 87, which was passed for the prevention of smuggling, enacted that an information might be laid before one justice, but could only be heard before two. Section 107 of the Act provided that all informations exhibited before any justice or justices of the peace for any offence against the customs should be drawn in the form or to the effect in the schedule annexed to the Act. All the forms in the schedule used the words "gives us, two of Her Majesty's justices of the peace, to understand." It was held, however, that the forms in the schedule did not override the provisions of the Act, and that an information might be laid which used the words "one of Her Majesty's justices of the peace" (1). In another case it is said that the schedule to an Act is not itself an enactment, though it may aid in explaining one which is doubtful (m). A form given in a schedule, especially if there is no reference to it in the body (k) R. v. Baines, 12 A. & E. at p. 227. (1) R. v. Russell, 13 Q. B. 237. (m) R. v. Epsom, Inhabitants, 4 E. & B. at pp. 1008, 1012, per Lord Campbell, C.J. of the Act, is merely an example (n), and is "only to be followed implicitly so far as the circumstances of each case may admit" (o). The positive words of one Act (2 W. & M., Sess. 1, c. 5, s. 2), providing that two sworn appraisers should value goods distrained for rent, were held not to be repealed by the schedule appended to 57 Geo. III. c. 93, which specified 6d. in the pound as the charge for appraisement, "whether by one broker or more" (p). forms are tive. But in a few cases it has been declared that Where forms contained in the schedules to Acts of Parlia- imperament must be strictly followed, and that any departure from them was fatal. Thus where the words employed by the 13 Geo. III. c. 78, were "the forms in the schedule shall be used," it was held that this was imperative, and an order by justices stopping up an old footpath was set aside for non-compliance with the form prescribed by the Legislature (g). So where the form of a certificate in the schedule to an Act for regulating the confinement of lunatics left a blank for the "street and number of house" where a medical examination took place, it was held that a certificate which stated only the name of a town was insufficient ("). So, too, it was decided by Wood, V.-C., and on appeal by Lord Campbell, L.C., that the forms of transfer and mortgage given by the Merchant (n) Hennah v. Whyman, 2 C. M. & R. 239, per Parke, B. (q) Davison v. Gill, 1 East, 64. (r) R. v. Pinder, 24 L. J. Q. B. 148. |