
    Commonwealth versus Isaac Samuel.
    Upon an indictment under St. 1820, Ci 45, § 1, for peddling goods not of tix produce or manufacture of the United States, it is incumbent on the government to prove affirmatively that the goods were of foreign produce or manufacture.
    The defendant was indicted upon St. 1820, c. 45, § 1, which enacts that “ every hawker, peddler, petty chapman, or other person going from town to town &c., carrying to sell, or exposing for sale, any goods &c., shall &c. forfeit &c., provided however, that nothing herein shall prohibit any person from carrying abroad and selling- or exposing for sale &c., any goods &c. of the produce or manufacture of the United States, except ” &c.
    The indictment charged the defendant with carrying to sell and exposing for sale goods &c., not being of the produce or manufacture of the United States.
    
    At the trial at the last November term, before Parker C. J., one Harris testified that he bought a piece of silk braid of the defendant, but that he did not know whether it was of foreign manufacture or not. On this point it was contended on behalf of the defendant, that the government ought to prove affirmatively that the article was of foreign manufacture ; but the judge instructed the jury, that as such articles were principally, if not entirely, of foreign manufacture, they might presume this to be, unless the contrary were proved. A verdict was found in favor of the Commonwealth, and if the foregoing direction was wrong, the verdict was to be set aside and the defendant was to be discharged from the indictment.
    .The Court now being of opinion that there should have been proof that the article in question was of foreign manufacture, the defendant was accordingly discharged.
    
    
      J. T. Austin, County-Attorney, for the Commonwealth.
    
      Dunlap, for the defendant.
    
      
       Here the negative is part of the description of the offence, which brings the case within the reason of Rex v. Rogers, 2 Campb. 654.
    
    
      
       See Commonwealth v. Maxwell, post, 141 ; Smith v Moore, 6 Greenl. 279 ; Jones v. Axen, 1 Ld. Ray. 120.
    
     