An Interesting Law Point.

Taranaki Daily News, Volume XLVI, Issue 74, 31 March 1904, Page 2

An Interesting Law Point.

BOROUGH BY-LAWS CASE. diuvin g no usks i; n attk-Viik i ) IX THE STKEETS. THE JNFOIttUTIONS DISMISSFd). On Wednesday morning, Mr H. 1,. Stanford, S.M., presided in the Magist rale's Court, when on the int'Jrmatiun oi -Mr Fred Stohr, inspector under the l\vw 'Plymouth borough by-laws, Patrick McGehan, an employee at one of the local livery stables, was charged with a breach of t.iie by-laws by driving horses loose along .Devon-street, within the borough. Air Quiiliam (.Messrs Go veil and Quillium) appeared lor the horough Council, and Mr Malone (Messrs Malone. McYeugh and Anderson) for the defendant.

Fred Stohr. the borough inspector, gave evidence as to the olTence having been committed in Devon-street at about quarter past tfix in ihe morning.

Mr Maloiie here submitted that the information was dei'eruve, inasmuch as it did not set forth or negative any exceptions. r J'he by-law read : "No person shall drive any cattle not in yoke oi- in harness through any street in the borough, except through such street or streets and at such times a:* the council shall from time to time by resolution permit." On this reading, he contended that the information must contain a statement to negative any such exception in this case. It should prove that the hour of (i.lo a.m., and the street (Devon-street) were .not excepted by resolution of the i council.

Mr Quiiliam said this was not now necessary, and he had authority for his statement in the statutes.

Mr Malone quoted authorities in , support of his contention, that an information required the same certainty as was required in an indictment, and in indictments where an , exception or a proviso was mix<#'i up with the fiiscription of an offence, i the indictment must show negatively 1 that tin* party or the matter pleaded did not come within the meaning of such exception or proviso. K there were any exception contained in the same clause of the Act which created the offence the indictment must show negatively that the defendant or the subject of the indictment does not come within the exemption. In England (quoting 42 and 4H, Vict. ch. 29, see. 39, sub-sec. 2) as to an information, the negation of (he exemption was no longer neees. c :ary, but he did not Know of any .similar condition existing in this colony, if his learned friend thought he could 1 liiid any such, provision he (Mr Malone) would be quite prepared to agree to an adjournment to allow Mr Quiiliam to look up authorities. If there were such a clause there would be an end to the argument. Mr Quiiliam contended that it was for the defendant, not the informant, to prove the exception. Mr Malone said that that was not the case unless the information had negatived the exception. Mr Quiiliam saiil lie couh't call evidence as to the resolutions yf the council. There was no excuption, and the inspector under the by-laws was the very man to prove it. Mr Malone: The information should say,so. His Worship agreed with Mr Mnlone's argument, and suggested that to meet Ihe difficulty the information might be amended. Mr Quiiliam then asked that thQ informal ion might be amended. Mr Malone strongly objected to what he termed "patching up"- the information at this late stage. He asked that the information be dismissed.

His Worship dismissed the charge. Mr Quiiliam then asliwl that his Worship should specifically state his ruling, with a view to having the point settled on appeal, and this was done.

Similar charges against other defendants were withdrawn.