Queen's Bencn. 1846. Case. further, that the said service of the said Seth Turner junior shall not be determined at the end of the said eleven months, unless the said Seth Turner shall, on the SETH TURNER'S fortnightly pay day next but one preceding, give the said J. D., or his pay-clerk or underlooker, four weeks' notice, in writing under his hand, of his intention to quit his service at the end of such eleven months: and, in default of such notice, the said Seth Turner junior shall continue in the said service of the said John Darlington, on the terms herein agreed to, for the further space of four weeks, and so on, from month to month, till the expiration of one month after such notice in writing as aforesaid shall have been given. And also that, if the said J. D. should at any time or times alter his present or any future method of working his mines, the said Seth Turner junior shall work according to the method used for the time being, at such wages as shall be a fair field price for such work. And further that, if, at any time or times during his said service, the said Seth Turner junior shall, within the fortnight between pay-day and pay-day, wilfully neglect to work for so much time as shall amount altogether to eleven full fair days' work, computing a day's work at eight hours, then and in such case he shall, immediately from and after his said term of service shall be determined, serve and work for the said J. D., as such miner as aforesaid, for such further time as shall be wanting to complete the said period of eleven days' work in each and every fortnight of the said term. And the said J. D. hereby agrees to accept and employ the said Seth Turner junior, as his servant in mining, at the wages and on the terms above mentioned, except when and so far as he may be prevented by any unavoidable or accidental damage or Volume IX. 1846. obstruction to any engine, gearing, or machinery, or to the said mines or any of them, or to the workings SETH TURNER'S thereof. Provided always, that nothing herein contained Case. shall extend, or be construed to extend, to alter, prejudice, lessen, or otherwise affect the legal remedies or powers which belong to masters and servants in their respective relations to each other, or to coal masters and persons employed by them in collieries with relation to their contracts with each other respecting the same or in relation to the working or management thereof." (Signed by Darlington and Turner.) "And, on this day, to wit" &c., "before me the said justice, one credible witness," to wit &c.: the document then set out evidence on both sides. "Therefore, it manifestly appearing to me, the said T. B. W. Sanderson, so being such justice as aforesaid, that the said Seth Turner the younger is guilty of the offence charged upon him in the said information and complaint, I do hereby convict him of the offence aforesaid: and I do hereby order and adjudge that the said Seth Turner the younger, for the offence aforesaid, be imprisoned in the House of Correction at Kirkdale aforesaid, there to remain and be held to hard labour for the term of three months from this the said 12th day of February, in the year 1846 aforesaid. And I do hereby command you, the said Philip Markey, to take and convey the said Seth Turner the younger to the said House of Correction, and to deliver him to the keeper thereof, together with this my warrant: and I do hereby command you, the said keeper of the said House of Correction, to receive the said Seth Turner the younger into your custody in the said House of Correction, and him there safely to keep and to hold to hard labour for the term of three months" &c. "And for your so Queen's Bench. doing this shall be your sufficient warrant. And it 1846. Case. further appears," &c.: the document then stated that SETH TURNER'S the justice made no order touching Turner's wages. "Given" &c., "the 12th day of February, A. D. 1846." (Signed and sealed by the justice.) "And these are the causes of detaining " &c. Bodkin now moved that the prisoner should be discharged. First, the conviction discloses no offence within the meaning of stat. 4 G. 4. c. 34. s. 3. It finds the prisoner "guilty of the offence charged upon him in the said information and complaint." Now the information and complaint charge that he did, "before the term of his said contract was completed," "absent himself from his said service, and did thereby then and there neglect to fulfil the same" (that must be the service), "contrary to the form of the statute in that case made and provided." No offence can be committed if the absence has been by permission of the employer, or has been caused by unavoidable accident, or illness. No inference, as to want of permission, can here be drawn from the fact of the complaint: for the informer is not the employer. The words of the statute are indeed followed: but that is not sufficient where the statute is so worded as to include acts manifestly not within its intent. Cases on this point are cited in Paley on Convictions, pp. 108-113, 3d ed. In Rex v. Corden (a) a conviction, upon stat. 5 G. 3. c. 14. s. 3., for fishing in a water in inclosed ground being private property, was quashed for not negativing the permission of the owner, (a) 4 Burr. 2279. Volume IX. though the statute does not make any exception in case 1846. SETH TURNER'S of such permission. The statement here, that the absence was contrary to the form of the statute," will not aid; nor would the word "unlawfully," which, however, is not used; Rex v. Corden (a), Colborne v. Stockdale (b), Fletcher v. Calthrop (c), Newman v. The Earl of Hardwicke (d). Secondly, the information does not shew the nature of the contract with sufficient particularity: and the importance of this appears from the contract, as set out in the evidence, which contains an exception in cases of damage to the machinery or mines, which the information ought to negative (e). Thirdly, the terms of the contract are unreasonable, the servant being bound for eleven months, at wages in proportion to the coal got, yet the master not being bound to provide work (g). Cowling, Edward James and Fry, contrà. First: the general rule is, that it is sufficient if a conviction follow the language of the statute on which it is framed. That (a) 4 Burr. 2279. (c) 6 Q. B. 880. 889. (b) 1 Str. 493. 496. (e) The argument on this and the remaining objections is not reported, the Court not having decided upon them. On the second objection the following authorities were referred to: Hardy v. Ryle (9 B. & C. 603.); Rex v. Neville (1 B. & Ad. 489.); Lancaster v. Greaves (9 B. &C. 628.); Kitchen v. Shaw (6 A. & E. 729.). (g) On this point, the following authorities were referred to: Note, in 1 Smith's Lead. Ca. 181., to Mitchel v. Reynolds (1 P. Wms. 181.); Hitchcock v. Coker (6 A. & E. 438.); Horner v. Graves (7 Bing. 735.); Pilkington v. Scott (15 M. § W. 657.); Williamson v. Taylor (5 Q. B. 175.); Young v. Timmins (1 C. & J. 331.; S. C. 1 Tyrwh. 226.); Mallan v. May (11 M. & W. 653.); Sykes v. Dixon (9 A. & E. 693.); Morris v. Smith (3 Doug. 279.); Aspdin v. Austin (5 Q. B. 671.); Gale v. Reed (8 East, 80.). 1846. Case. appears from Paley, p. 108., Rex v. Chandler (a), Rex Queen's Bench. v. Speed (b). Undoubtedly, when the statute itself has an express exception, or is applicable only under special SETH TURNER'S circumstances, the conviction must negative the exception, or shew the special circumstances: thus, in Rex v. Jukes (c), a conviction was quashed for not stating the offence to have been committed knowingly; but there the statute expressly made the knowledge an element of the offence. So in Rex v. Jarvis (d) it was held that a conviction on the game laws must negative the express qualifications given by statute. But this principle can never be applied to cases where the exception is not expressed in the statute, but is merely a supposable fact. To require that such exceptions should be negatived would make a good conviction impossible; for they may be suggested without limit. If there had been an excuse here, the prisoner might have shewn it. [Patteson J. On whom would the onus of proof lie?] Apparently on the prisoner; Rex v. Marsh (e), per Bayley J.; Rex v. Neville (g); Mann v. Davers (h). So, ❝where it is enacted, that all persons, having no reasonable excuse, shall go to their parish church," "there is no need to allege in the indictment, that the defendant had no reasonable excuse; for this will more properly come into question from the plea;" 4 Bac. Abr. 328. (7th ed.), tit. Indictment (H), 3. The informer, in this case the employer's agent, could not know whether the prisoner had any valid answer to the charge. (a) 1 Ld. Raym. 581. S. C. Carth. 501. (d) 1 Bur. 148. |