
    R. G. Mills v. John Kennedy.
    Columbia,
    May 1828.
    In an action against a sheriff to recover the penalties imposed by the act of 1799, for not returning executions lodged in his office, the declaration must allege that the executions were not lodged to bind, or it will be bad on demurrer.
    In actions upon penal statutes, if the enacting clause contain an exception, the declaration must shew that the defendant is not within that exception. It is otherwise where the exception is in another statute, or another clause of the same statute; there it is matter of defence, and it is for the¡ defendant to shew that he is within the exception.
    Tried before Mr. Justice Gantt, at Chester, Extra Term, in April, 1828.
    This was an action on the act of Assembly of 1799, against the defendant, who was sheriff of Chester district, to recover the penalties imposed by that act, for neglecting to make due returns of executions lodged in his office. The defendant demurred specially» and set down ten distinct causes of demurrer; but as the Court of Appeáls expressed no opinion but on one of them, it is unnecessary to specify the others. The tenth cause of demurrer was, that the declaration was insufficient in merely alleging that the executions were lodged in the defendant’s office, without specifying that they were delivered to, or accepted by him; and in the argument, this ground seems to have been enlarged into an objection, that the declaration did not aver that the executions were not lodged to bind merely. The act, immediately after the clause imposing the penalty, contains in the same paragraph the following proviso ; “ Provided, nothing herein contained, shall be construed to compel any sheriff or coroner to return any executions in their offices expressly lodged to bind property, and so marked by the persons lodging the same.” 2 Faust, 320. And for the defendant it was contended, that the declaration ought to have averred that the defendant was not within this proviso.
    
    His Honor, the presiding Judge, sustained the demurrer on all the grounds. And this was a motion to reverse his decision.
    Williams, for the motion.
    Unless the exception is contained in the enacting clause, the plaintiff need not shew that the defendant is not within it. Here, the enacting clause and the proviso, although in the same paragraph, are distinct. The true test is, whether the exclusion of the exception' enters essentially into the definition of the offeuce; if it does not, then it is matter of defence, and must be brought forward by the defendant. The exception must be clearly a part of the definition, or the plaintiff is not required to aver or prove a negative. College of Physicians v. Salmon, 1 Ld. Raym. 680. King v. Stone, 1 East. 639.
    Johnson, contra.
    
    The test proposed, is inefficient as to any practical purpose ; and the only tangible rule is that laid down in the books, that where the exception is contained in the enacting clause, the exception must be negatived, because the intention of the Legislature, that the penalty shall not attach, except in the cases not excluded by the proviso, is manifest; but where the exception is contained in another clause, and much more in another statute, the exception is matter of defence, because it is then an exemption from the penalty, rather than an exclusion from the definition. As to the distinction between the same clause and the same paragraph, it is a question as to the collocation of words. Convenience of expression and grammatical construction may lead to a distribution of the subject matter into dstinct sentences ; but the intention of the Legislature to connect the exception with the definition, is apparent by their being placed in the same paragraph. The rule seems to be very well settled, and there can be little difficulty in its application to this case. 1 Ch. PI. 229. Spieres ». Parker, 1 T.R. 141. The King v. Pratten, 6. T. R.' 559.
   Colcock, J,

delivered the opinion of the Court.

No rule of pleading is better established, than that the plaintiff must set forth all that is necessary to enable him to recover. It is, therefore, well established, that in declaring upon penal statutes, where there is an exception in the enacting clause, the plaintiff must shew that the defendant is not within the exception. If the exception be in another and subsequent clause, then it is matter of defence, and the other party must shew it to exempt himself from the penalty. 1 Ch: PI: 229. The very clause of the act 'which imposes this penalty, provides “ that nothing therein contained, shall be construed to compel any sheriff or coroner to return any execution lodged in their offices expressly to bind property, and so marked by the persons lodging the same.”

It was, therefore, necessary for the plaintiff to state that these executions had not been lodged to bind. But the declaration contains no such averment. It states that executions were lodged, requiring the sheriff, of the goods and chattels, &c. of the defendant, to make the money, and return the execution, &c. following the usual form of an execution; but this is to be found in all executions, as well in those which are lodged to bind, as those which are lodged to be proceeded on. Therefore, they may still have been executions which were lodged to bind ; in which case, the duty is not required, and, consequently, the penalty cannot attach. This may appear to be mere technical strictness, but it is a wise and proper rule of pleading; for he who undertakes to recover a penalty, should shew that the law has been violated, for in that event alone, does the penalty attach. The case of the King v. Pratten 6 T. R. 559, is directly in point. This was a prosecution for buying rough hides contrary to the statute, 1. James 1. c. 23. which contains an exception of those who have been instructed in the art of tanning. This exception was not negatived, and therefore, the prosecution was dismissed. A , , m similar decision was made m the case of Spieres v. Parker, 1 T. R. 141, which was an action of debt for a penalty. And so in the case of Rex v. Jarvis, 1 East, 645, which was an information for an offence against the game laws, it was held that the defendant’s qualifications ought to have been negatived. As this ground proves fatal to the plaintiff’s action, it is unnecessary to give any opinion as to the others.

Motion refused.  