burrow king versus MALLINSON Wednesday d November a conviction on a penal  statute must negative all the exception in the statute whereby the defendant  may be protect see east this be a conviction for kill ten trout the conviction  set forth that one John keep of c come before the justice of peace and give  information that the defendant Thomas Mallinson of c tailor not have any land  and tenement or other estate of inheritance in his own right nor in the right  of his wife of the clear yearly value of or for term of life nor have any  lease or lease of ninetynine year or for any long term of the Clear yearly  value of nor be the son and heir apparent of a esquire or other person of high  degree nor be owner or keeper of any forest park chase or warren be stock with  deer or cony for his own necessary use in respect of such forest park chase or  warren nor be lord of any manor or royalty nor gamekeeper of any lord or lady  of any lordship or manor duly make constitute or appoint with power or  authority to take kill or destroy the game in or upon any such lordship or  manor nor be a maker or seller of any net angle leap piches or other engine  for the take of fish nor be owner of any river or fishery nor be a fisherman  lawful authorize to fish with net in navigable river or water nor a apprentice  to any such fisherman nor in any wise whatsoever empower authorize or qualify  that the law of this realm either to take kill or destroy any sort of fish  fowl or other game whatsoever either for himself or for any other person or  person whosoever nor to keep or use any greyhound settingdog hays lurchers  tunnel net or any other engine to kill and destroy the game on the that of  June g at Golcarr aforesaid within the say ride do with a certain net unlawful  take and kill ten fish that be to say ten trout contrary to the form of the  statute in such case make and provide whereupon the say Thomas Mallinson  afterward on the that day of June in the year aforesaid have notice of the say  information and of the offence therein charge upon he as aforesaid and be then  and there in due manner summon to be and appear before the say justice at his  dwellinghouse in m aforesaid in the westriding immediate upon his receipt of  that summons to make his defence against the say charge contain in the say  information but the said Thomas Mallinson neglect to appear and do not appear  before the say justice nor make any defence against the say charge but make  default therein wherefore the say justice afterward that be to say on the that  day of July g at his abovementioned dwell house in m aforesaid in the say  westriding the say Thomas Mallinson have burrow so be summon and have hitherto  neglect to appear or make any defence against the say charge do proceed to  examine the truth of the charge aforesaid in the say information contain and  hereupon John white of Golcarr aforesaid cordwainer be a credible witness come  before the say justice in his proper person and before the say justice upon  his corporal oath upon the holy evangelist of God to he then and there  administer by the say justice depose swear and upon his say oath affirm and  say that the say Thomas Mallinson not have any land and tenement or other  estate of inheritance in his own right nor in the right of his wife of the  clear yearly value of or for term of life nor have any lease or lease of  ninetynine year or for any long term of the clear yearly value of nor be the  son and heir apparent of a esquire or other person of high degree nor be owner  or keeper of any forest park chase or warren be stock with deer or cony for  his own necessary use in respect of such forest park chase or warren nor be  lord of any manor or royalty nor gamekeeper of any lord or lady of any  lordship or manor duly make constitute or appoint with power or authorityto  take kill or destroy the burrow er p game in or upon any such lordship or  manor nor be a maker or seller of any net angle leap piches or other engine  for the take of fish nor be owner or occupier of any river or fishery nor be a  fisherman lawful authorize to fish with net and engine in navigable river or  water nor a apprentice to any such fisherman nor in any wise whatsoever  empower authorize or qualify by the law of this realm either to take kill or  destroy any sort of fish fowl or other game whatsoever either for himself or  for any other person or person whatsoever nor to keep or use any greyhound  settingdog hay lurchers tunnel net or any other engine to kill and destroy the  game on the that day of June in the first year aforesaid in Golcarr aforesaid  in the say ride do with a certain net unlawful take and kill ten fish that be  to say ten trout contrary to the form of the statute in such case make and  provide and thereupon the say Thomas Mallinson on the that day of July  aforesaid in the year aforesaid be duly convict before the say justice of the  offence aforesaid in the say information contain and therein charge upon he by  the oath of one credible witness the aforesaid John Whiteley accord to the  form of the statute in such case make and provide it be therefore adjudge by  the say justice that the say Thomas Mallinson be guilty of the offence  aforesaid in the say information contain and be hereby convict thereof accord  to the form of the statute in such case make and provide and that the say  Thomas burrow Mallinson bath forfeit the sum of five pound for his offence  aforesaid that be to say ten shilling apiece for every and each of the  abovementioned fish so take and kill by the say Thomas Mallinson as aforesaid  amount together to the say sum of to be levy and distribute accord to the form  of the statute in such case make and provide in witness c Mr Norton on behalf  of the defendant make several objection to this conviction saint the summons  be bad as set out though indeed it be not necessary to have set it out at all  it is  to appear immediate which be not a reasonable summons strange king v  Johnson a objection of this sort be take to a summons to appear on the same  day it receive indeed a satisfactory answer from a fact videlicet the  defendant have there actual appear to it and make a defence which appearance  and defence cure all defect in the summons d objection here be not a full  negative adjudication of the defendant want of qualification for it be not  state that the defendant have not the licence or consent of the owner and as  this essential circumstance be omit the general allegation of his take and  kill the fish unlawful and against the statute be not sufficient V ante pa  king v Jarvis h g d objection it may be his own fish and in his own pond for  aught that appear to the contrary for it be only allege that he kill ten trout  at such a place the conviction seem to be intend upon W c Mr Yates contra for  the prosecutor saint No precise time of appearance be requisite to be fix by  the summons and this give a large latitude than if a day and hour have be fix  for it mean only as soon as he can dly though this omission of his not have  the consent of the owner can be support upon the statute of c c yet it may  upon that of W m c which say only if any person not qualify by the law of this  land and the court will not presume a qualification as in a conviction upon  the Gin Act in the case of king v Brian Str burrow the court will not presume  that the gin be sell to be use in medicine king v theed m g in Lord raym and  in strange the conviction be presume to be right as it do not appear to be  wrong dly the same answer hold to this objection videlicet that the court will  not presume that the fish be the defendant own or I that he kill they in his  own pond Lord Mansfield this conviction be clear bad the offence provide  against by the Act of c c be steal fish it seem clear to have be intend to be  ground on c c and not upon W and m burrow er p take it without the licence or  consent of the owner the jurisdiction give to the justice of peace be over  every such offender or offender in steal take or kill fish v take and kill in  the intention of this statute mean steal a but this man be not convict of any  offence for he be not charge with steal nor even with take and kill the fish  of another person or in another person pond the offence specify in the statute  be take it without the licence or consent of the lord or owner of the water  but it may be his own pond and his own fish b for any thing that appear to the  contrary in the present case therefore if there be no other fault in it it be  essential bad for this reason alone Mr just denison it be full of fault but  this alone will be fatal it do not appear that the fish he kill be not his own  or kill in his own pond Mr just foster the offence intend by the Act be the  invade another man property but there be no such charge upon this man as  invade the property of another Mr just Wilmot this conviction be bad for the  fault that have be mention and for a great many other it be bad throughout per  cur unanimous conviction quash