Teel v. Yellis

4 Johns. 304

Opinion

Van Ness, J.

delivered the opinion of the court. The imperfect manner in which the case of Blasdale v. Hewitt,

† is reported, must have given rise to the present motion. There some of the court are represented as saying, that because the declaration did not negative the qualifications of the proviso, it was therefore had. The reporter must have misapprehended the ground of that decision. Bonnet v. Hurd‡ contains a correct exposition of the law on this subject. The rule is this : If the proviso furnishes matter of excuse for the defendant, it need not be negatived in the declaration, but he must plead it. Such is the proviso in the present case. It forms no part of the plaintiff’s title, and affords merely an excuse to the defendant, if he had come within its purview. It would be unnecessary to proceed further, were it not that these cases are apparently irreconcilable, and it is desirable that the law should be finally and correctly settled. Serjeant Williams, in his note to 1 Sound. 262. says, “ But when the exemption is contained under the proviso to a subsequent section or act of parliament, it is matter of defence, and, therefore, it is not necessary to state in the declaration, that the defendant is not within such proviso.” The only inaccuracy in this remark consists in restricting the rule to provisoes contained in a subsequent section or statute, which was not warranted by the cases. In Jones v. Axen, (1 Lord Raym., 119.) Treby, Ch. J. with the concurrence of the rest of the court, says, “ that where an exception is incorporated in the body of the clause, he who pleads the clause ought to plead the exception; but when there is a clause for the benefit of the pleader, and afterwards follows a proviso which is against him, he shall plead the clause, and leave it to the adversary to show the proviso.” The same distinction is adopted in the case of the King v. Bryan, (2 Str. 1101.) that when the offence is brought within the enacting clause, and the justification comes in by way of proviso or exception, in the first case, it is matter of defence to be shown by the defendant ; in the other case, the exception must be negatived. In Spires v. Parker, (1 Term, 141.) all the judges agree, that the rule is, that any one who will bring an action for a penalty on an act of parliament, must show himself entitled under the enacting clause ; and if there be a subsequent exemption, that is a matter of defence, and the other party must show it to protect himself against the penalty.

The court are of opinion, therefore, that the motion must be denied.

Motion denied.

3 Caines, 137.

3 Johns. Rep. 638.