case the queen vers Burnaby in a conviction on the stat Elizabeth c for cut  down tree the number and quality of the tree ought to be mention express salk  SC salk SC ld ray n SC burn just Com dig this be a conviction before the  justice of the peace on the statute of Elizabeth c against such person as  shall cut wood underwood break hedge c for cut down several tree call limetree  and a exception be take that the conviction style the defendant gentleman  which show that the defendant be a gentleman and the statute be intend against  mean and disorderly person only and so be who have ability to answer damage  ought not to be convict upon this statute where he be oust of a trial by a  jury and have not opportunity to make out his title if be claim property and  the style and the preamble of the Act and also the statute of car c show that  those act be intend against lewd and pilfer person and then a gentleman shall  not be intend to be comprise within the meaning of they say non allocatur for  the court can distinguish between the ability of person and there be no  certain rule or limit to determine by who be able to answer damage and who not  and if a gentleman do a base or inferior act his quality be not any excuse but  a aggravation of his offence and the court think that if the defendant claim  property before the justice they ought not to have make the conviction and if  they proceed to do it a prohibition lie either before or after the conviction  and by the opinion of some if property be allege before the justice comens who  afterward make the conviction and award damage a action will lie against he  who take the damage but here the conviction be remove by certiorari a  prohibition can be but by holt c j the defendant may make a suggestion upon  the roll of his property by way of plea Lord Raymond in his report of this  case say that he be inform that the court do not give any positive opinion as  to the plea but that they seem incline as above and that by the advice of the  court the party consent to try in a action whether the defendant have any  right or no in the place where c but sir Robert Barnard die soon after the  term the suit fall p and thereupon it shall be try and saint John case     b  cro Elizabeth S c a do not make to the contrary but the other judge seem to be  of a contrary opinion in this point another exception be that the offence be  allege to be at Bampton in the county of Huntingdon and afterward it be say  that the defendant at Bampton pillage c and Bampton pillage do not import  Bampton in come pillage for Bampton may extend to two county and part of it  may be in Huntingdonshire and part in another county say non allocatur for  although it may be in two county yet Bampton pillage be no other than that  Bampton which be before mention in the county of Huntingdon the three  exception be that the conviction be for cut down several tree and damage to  give but do not show the number of the tree which ought to be the measure of  the damage and if a action shall be bring for the trespass this conviction can  be plead in bar for it will not appear that the conviction be for the same  tree and therefore the number and quantity of the tree ought to be mention  express in the conviction as well a in a action for the trespass as in     b b  platers case and for this cause the court be of opinion that the conviction be  illUpon the same principle the case of the king vers catherall report in Str p  be determine where the defendant who be convict on the Kensington turnpike Act  for refuse to account and pay over the money receive by he as collector be  discharge and the conviction be quash because no particular sum be specify or  the time when the money be charge to be receive so as to enable he to defend  himself on a second charge comens er p