It is said that there is a middle class of cases, namely, where the exception is not in express terms introduced into the enacting clause, but only by reference to some subsequent clause, or prior statute; as where the words "except as hereinafter mentioned," or words of similar import, are employed; and that in those cases the exceptions must be negatived: Ex parte Barthelemy, 1 Lead. Crim. Cas. 260, note. The statute on which this indictment is framed has in the section of its enactment a reference to the subsequent section for an enumeration of the cases to which the act does not extend. This case would seem to fall within that classification. The necessity in such cases of negativing the exceptions in the indictment cannot arise from the mere fact that a reference to the excepted cases is made in the section containing the enacting clause. There is no greater reason in that rule than in saying that the exceptions of a statute must in all cases be negatived, because they are placed in the section containing the enacting clause, as they may be divided in the act-a rule discarded by elementary authors as well as by adjudged cases. The same principle should govern this class of cases which governs other classes, and the exceptions should be negatived only where they are descriptive of the offense or define it; but where they afford matter of excuse merely, they are to be relied upon in defense. The question is one not only of pleading, but of evidence, and where the exceptions must be negatived in the indictment, the allegations must be proved by the prosecution, though the proof may involve a negative: State v. Butler, 17 Vt. 150. As the same reasons exist in one class of cases that exist in the other, the same principle should apply. The case State v. Barker, 18 Id. 195, is a good illustration of the rule where the exception in the statute should be and was required to be negatived. Not all labor and business on the sabbath is forbidden by the statute on which that prosecution was had, but that only which is unnecessary, and which is not a matter of charity. That exception defined the kind of labor forbidden, and qualified the whole enacting clause. The same rule was recognized in the case of Smith v. Moore, 6 Me. 274. It was not every neglect by the executor to file the will within thirty days that constituted the penal matter; but it was the unexcused neglect, thus defining and qualifying the act which constituted the matter for which the penalty was given. To prove that the executor neglected to file the will within thirty days would not make even a prima facie case; it must also be proved that it was unexcused. For that reason, it was held the exception should be negatived. The

cases of Spieres v. Parker, 1 T. R. 141. and Gill v. Scrivens, 7 Id. 27, rest upon the same ground.

The case of Commonwealth v. Hart, 1 Lead. Crim. Cas. 250, is a forcible illustration of the rule where exceptions in a statute should be, and where they are not required to be, negatived. The act of 1852 in Massachusetts provided that " no person shall be allowed to be a manufacturer of any spirituous or intoxicating liquors for sale, or a common seller thereof, without being duly authorized, on pain of forfeiting," etc. "Provided, that nothing in the act shall be construed to prevent the manufacture or sale of cider for other purposes than that of a beverage, or the sale and use of the fruit of the vine for the commemoration of the Lord's Supper." The words "without being duly authorized" defined and qualified the act forbidden by the statute. It was not all sales or manufacture of intoxicating liquor which were forbidden, but only such as were unauthorized; hence the want of authority should be averred and proved, though it might involve the proof of a negative. But the matter embraced in the proviso did not define, qualify, nor was it descriptive of the matter prohibited in the enacting clause. When it was alleged in the indictment, and proved on trial, that the respondent was a common seller of spirituous and intoxicating liquors without being duly authorized, the offense was fully made out; a prima facie case was alleged and proved, and it was for the defendant to prove that he was within any of the cases mentioned in the proviso. The case of Steel v. Smith, 1 Barn. & Ald. 94, is of the same character, and is so considered by Metcalf, J., in the case above cited. See also Rex v. Pearce, Russ. & Ry. 174; Rex v. Robinson, Id. 321. In the case of Rex v. Baxter, 2 East P. C. 781, S. C., 5 T. R. 83, the act provided that "in all cases where goods have been stolen, except where the person committing the felony shall have been already convic ed, etc., every person who shall buy or receive such goods, knowing them to have been so taken, shall be deemed guilty," etc. In this act, it will be perceived that the exception is contained in the body of the enacting clause; still it was held that it was matter of defense, and need not be negatived in the indictment. It is difficult to make a distinction between that case and the one under consideration. It may be true that one of the arguments of Buller, J., is not sustained by later authorities; but we do not perceive that the case itself has ever been questioned in any adjudication of the court in that country or in this. The doctrine of that case is approved in Archb. Crim. Pr. 153; 3 Ch.

Crim. L. 959; and rests upon the authority of Rex v. Pollard, 2 Ld. Raym. 1370.

The fifth section of the act on which this indictment is drawn contains the enacting clause; in which the exceptions are made of those cases which are specified in the sixth section. The cases excepted do not define or qualify the offense created by the enacting clause. If the facts are alleged in the indictment and proved on trial, that the respondent had a former husband or wife living, and married another person, or continued to cohabit with such second husband or wife in this state, the offense is fully made out. A prima facie case is stated and proved. If, in fact, the former husband or wife of the respondent had been continually beyond the sea or out of the state for seven years together, and the respondent had married again, not knowing the other to be living within that time, or if the respondent had been divorced, or the marriage had been declared null and void by the sentence of a court, or if the former marriage was within the age of consent, and not afterwards assented to, those facts should be relied upon and proved by the respondent in his defense. As was observed by the court in the case of State v. Barker, 18 Vt. 197, "the facts are peculiarly within the knowledge of the respondent," and the onus of their proof should rest on him.

The sixth section declares that "the provisions of the preceding section shall not extend to any person," etc. This is strictly an exception, and "that which is excepted out of an act is out of its provisions;" as much so as if the act had never been passed. Cases excepted from the act necessarily do not define, qualify, or in any way affect the provisions of the enacting clause. It is a statutory provision, overriding the whole act, that to those cases the act does not extend. In such cases, exceptions need not be negatived, but are to be treated as matters of defense, and are to be relied upon by the respondent as such: Lawton v. Hickman, 9 Ad. & El., N. S., 563, 58 Eng. Com. L. 561, 588; Thibault v. Gibson, 12 Mee. & W. 94, and note; Simpson v. Ready, Id. 734. The difficulty and impracticability arising from a different construction of the act is itself a good reason why it should not be adopted; particularly as all the matters embraced in those exceptions are peculiarly within the knowledge of the respondent. This being the only objection taken to the several counts in this indictment, we think the motion in arrest must be overruled.

PROOF THAT PERSON IS ACTING JUSTICE OF PEACE, without showing his commission from the governor, is a sufficient proof of his authority to solemnize a marriage: State v. Robbins, 44 Am. Dec. 64; see also note to State v. Hodg kins, 36 Id. 750.

MARRIAGE CERTIFICATE AS EVIDENCE: See note to State v. Hodgkins, 36 Am. Dec. 750. Statutes, whether public or private, may be proved by a copy of the laws in which they are included, as published by authority of the legislature of the state where they are in force: Gray v. Monongahela N. Co., 37 Id. 590. Where an offense is created by statute, and there is an exception in the enacting clause, an indictment for such offense must negative the exception; but if there be a proviso therein which furnishes matter of excuse for the defendant, the indictment need not negative it: State v. Godfrey, 41 Id. 382. The rule that an indictment must negative exceptions in a statute does not apply to a case where the charge preferred ex natura rei conclusively imports a negative of the exception: State v. Price, 37 Id. 81. An indictment under one section of a statute need not negative an exception contained in a subsequent section thereof: State v. Shiflett, 64 Id. 190.

CERTAIN SECTION OF ACT WHICH PROHIBITED SALE OF GOODS without taking out a license-excepted from the provisions of the act goods manufactured in that state. In an indictment for the violation of this statute, it was held not necessary for the prosecution, in order to make out a prima facie case, to prove where the goods were manufactured, as such fact would be peculiarly within the knowledge of the respondent, and should be proved by him as matter of defense: Stute v. Hodgdon, 41 Vt. 139. The prosecution should show that the respondent does not come within the exceptional clause of the statute, where the exception is descriptive of the offense or defines it, but where the exception affords matter of excuse merely, and does not define nor qualify the offense created by the enacting clause, it is not required to be negatived by the prosecution: Id., citing the principal case.

CASES

IN THE

SUPREME COURT OF APPEALS

OF

VIRGINIA.

RAINES V. BARKER.

[13 GRATTAN, 128.]

VIRGINIA STATUTE OF 1849 DOES NOT APPLY TO WILL PREVIOUSLY MADE, so as to determine its validity or effect, though the testator died after that statute was enacted, such wills being expressly exempted from its operation.

ENGLISH RULE IS THAT AS TO LANDS WILL SPEAKS AT DATE, but as to personalty, at the death of the testator.

TESTATOR MAY DEVISE AFTER-ACQUIRED LANDS under the Virginia statute of 1785, but not unless an intent to do so appears from the language of his will: Allen v. Harrison, 3 Call, 289.

AFTER-ACQUIRED LANDS ARE NOT WITHIN CLAUSE "WITH EVERY ARTICLE OF PROPERTY belonging to me, excepting the wearing apparel,” annexed to a direction in a will, under the Virginia statute of 1785, to sell certain specific tracts of land and shares of stock, "with all my household and kitchen furniture, all my stocks of all kinds, plantation tools and implements."

AFTER-ACQUIRED LANDS DO NOT PASS BY WORDS "BALANCE OF MY EsTATE," in a will under the Virginia statute of 1785.

ERASURE, BY TESTATOR, OF EXECUTOR'S NAME AFTER EXECUTION OF WILL, and the insertion of another name, it not appearing when the alteration was made, is of no importance in determining when the will is to be deemed to have been made, for the purpose of ascertaining what statute governs it.

EJECTMENT by the heirs at law of John Barker, deceased, to recover a certain tract of land sold by the executor to the defendant Raines. The land was purchased by the testator in 1849, he having previously, in 1842, made a will emancipating his slaves, and directing his executor to sell certain tracts of land specifically described, not including the land in controversy, also certain shares of factory and railroad stock, "with