Nathaniel Brinkley v. Alexander Jackson.Headnote
If a saving or exception in a statute, is contained in a subsequent section of it, the defendant must plead it, and show that his case comes within iti for the plaintiff is not bound to negative it.Certiorari. The proceeding below was at the suit of Jackson against Brinkley, on the provision of the Act of Assembly, Rev. Code, 46 Sec. 18, to the following effect: If any free negro or free mulatto, not residing within the limits of any town where an election shall be held, &c., &c , shall be found within the limits of such town, &c., &e., on the day of such election, every such free negro or free mulatto, shall forfeit and pay the sum of two dollars to any person who will sue for the same; to be recovered with cost before any Justice of the Peace of the county.
The errors assigned were, 1st. That it did not appear on the record that Brinkley was a free negro, or free mulatto, 2nd. That it did not appear in the record, that if such was th e case, that he did not reside within the limits of the town where the election was held. 3rd. That it did not appear therein, that he was not going directly to the place for necessaries, &c., and directly returning therefrom, as provided for in the 20th section of the act.
reversed the judgment on the first and second errors assigned. It should appear by the record that the defendant below was, first, a free negro or free mulatto, as the law applies only to such; and, secondly, that he did not reside within the limits of the town at the time of the election. And this not appearing, the record is defective and the judgment must be reversed. As to the third error assigned, as it is a matter or ground of exception embraced in a subsequent section of the act, it was incumbent on the defendant below, to plead and show that he came within the exception, if he intended to take advantage of it, and the facts of the case warranted it. This rests on a very plain and well settled principle of pleading, both in criminal and civil cases.