1846. Case. Such an allegation would Volume IX. [Lord Denman C. J. Why did he inform without ascertaining that?] If the absence of lawful excuse had SETH TURNER'S been alleged, that would have been objected to as a conclusion in law. [Lord Denman C. J. It would shew that attention had been turned to the point.] The information gives notice of what is to be proved. The prisoner is charged with neglecting to fulfil the contract, contrary to the statute. If he had an excuse there would be no neglect. The absence is an offence only because it is a neglect. be a good breach in a civil action: the statute substitutes a penalty for an action. [Patteson J. Sect. 3 has the words "or be guilty of any other misconduct or misdemeanour in the execution thereof:" would it be enough to say that the prisoner had otherwise misconducted and misdemeaned himself in the execution of his contract, contrary to the statute?] The nature of the offence must appear: here it does. In Rex v. Corden (a) the Court laid a stress on the circumstance that the penalty was given to the owner, as shewing that his consent must be negatived. But here that is not so. It is there said: "if the owner had been the complainer, that would have shewn his dissent:" the complaint here is by the employer's agent, which has the same legal effect. Sect. 4 recognises the agent as standing in the place of the employer. In Fletcher v. Calthrop (b) the context of the statute shewed the necessity of the allegation in question. The omission of the word" unlawfully" will not aid the objection; Rex v. Chipp (c). In Newman v. The Earl of Hardwicke (d) the conviction was bad, because, by the sta (a) 4 Bur. 2279. (b) 6 Q. B. 880. 1846. tute there in question, there could be no offence till the Queen's Bench. hours were fixed, and it was not shewn that any hours were fixed. (They then argued against the second SETH TURNER'S and third objections.) Bodkin and Huddlestone, in support of the rule. The absenting is the substantive offence charged: the " neglect to fulfil" is a matter inferred from the offence shewn: at any rate the addition of these words cannot make the complaint good, if otherwise insufficient In Wood v. Fenwick (a) the commitment rightly adjudged that the prisoner had absented himself" without leave or any just cause." The warrant in Johnson v. Reid (b) contained a similar averment. In Regina v. Richards (c) the second commitment, which was upheld, stated that the prisoner "did neglect his work and refuse to go to it on being requested" by his employer. [Patteson J. To negative licence alone, in this case, would not be enough, according to your argument; because there might be other reasonable cause of absence.] Lord DENMAN C. J. The question at last comes to this: whether the information states any offence. I think it does not. It is essential that there should be, on the face of the information, something on which the justices may convict. Now to complain merely that the party absented himself from his service is to charge no offence, unless it be added that this was done without leave or lawful excuse. The want of leave is a circumstance that the employer and his agent have the means of knowing (a) 10 M. & W. 195. See Ex parte Johnson, 7 Dowl. P. C. 702. Case. (c) 5 Q. B. 926. Volume IX. 1846. SETH TURNER'S and stating other lawful excuse there may indeed be, which the complainant may not know of; but he might at least shew that he knew of no such excuse. Then, the conviction is merely of the offence charged in the information and none is charged. As to the contract not being stated in the information, the argument that has taken place upon its effect is an important illustration of the necessity of stating both the contract and the offence fully. As to the third point, I will only say that I should be sorry that any opinion of mine, respecting the objection to the contract on general grounds, should have the effect of preventing parties from being amenable upon terms of agreement into which they have voluntarily entered. PATTESON J. The conviction is only of the offence charged in the information. Is any offence charged? The charge is that the prisoner absented himself from service. Must that be laid to be without lawful excuse? If it must, no offence is here charged. The information does add that the prisoner did thereby "neglect to fulfil the same," contrary to the statute: but that is not a direct charge; it is only an inference from what precedes; if the absenting does not constitute an offence as laid, the inference is not warranted. It therefore comes to this; whether it is necessary to negative lawful excuse. I think it is, and that the absence must be shewn to be wilful, or without lawful excuse. As this information is framed, it would have been proved by shewing that the prisoner had stayed away because he had broken his leg. Whether the magistrate might convict simply for neglecting to fulfil the contract, on account of the language of the statute, I do not say. 1846. SETH TURNER'S WILLIAMS J. I always thought that the law was Queen's Bench. properly laid down by Lord Mansfield in Rex v. Corden (a), that, if the fact, as charged, may be consistent with the innocence of the prisoner, no offence is charged. It is argued that the information is merely a notice given to shew what is to be proved: but that is not so; it is the foundation of the conviction, inasmuch as it is what gives the magistrates jurisdiction: and that is the reason why it is examined so strictly. The question then comes to this: on whom is the onus of negativing the excuse? It is said to be sufficient to follow the words of the statute: but many cases may be put in which a party may absent himself from service, within the general terms of the statute, consistently with perfect innocence: the onus therefore is on the complaining party. In Rex v. Corden (a) the complaining party was a third person; and, unless the consent of the owner was expressly negatived, nothing wrongful would appear, although, if the owner himself had complained, there might have been some evidence of want of consent. This last distinction, if tenable, is inapplicable here: the whole question is, whether it be enough to say, nakedly, that the prisoner absented himself from the service. The averment introduced by the words "and did thereby" can add nothing. Prisoners discharged. (a) 4 Bur. 2279. Volume IX. 1846. Monday, June 1st. A return by the keeper of a house of correction to a habeas corpus ad subjiciendum stated that the prisoner was in custody under a commit. ment, the tenor of which was as follows. A document was then set out, addressed to all constables &c. and to the keeper, reciting that complaint had been made to a justice, on oath, that the prisoner had contracted to serve the complainant, and had absented himself from In the Matter of JOHN HAMMOND. JOHN HAMMOND was brought, by habeas corpus ad subjiciendum, before a Judge at chambers, who, on reading the return, referred the case to the full Court, admitting Hammond to bail in the mean time. The writ was directed to the Keeper of the House of Correction at Stafford. He returned that Hammond was taken and detained in his custody, "under and by virtue of the several commitments" under the hands and seals of two justices of Staffordshire; "the tenor of which said several warrants of commitment is as follows." The return then set out two documents, both dated 14th November, 1845: but, as no distinction was suggested, in the argument or judgment, [between the two, only one is here set out. It was as follows. County of Stafford. To all constables &c., "and the service without his master's consent, before the contract was completed, contrary to the form of the statute &c.; that the complainant was "on this said 14th day of November" brought before the said justice and another justice to answer the complaint: "whereupon we, the said justices, in pursuance of the statute" &c., "did then and there duly examine the proofs and allegations of both parties, touching the matter of the said complaint, they having come before us for that purpose, and, upon due consideration had thereof, have, on the oath of the said" (complainant), "taken in the presence and hearing of the said" (prisoner), " adjudged and determined, and do hereby adjudge and determine, the said complaint to be true: and we do therefore convict the said" (prisoner)" of the said offence, in pursuance of the statute" &c. The document then commanded the constables to take the prisoner to the house of correction, and deliver him to the keeper, "together with this warrant ; and the keeper was required to receive him, to remain and be held to hard labour for the space &c.: "and for so doing this shall be your sufficient warrant," Given under the hands and seals of the justices, 14th November. Held, no other document being before the Court, that this must be taken to have the double character of a conviction and commitment, under stat. 4 G. 4. c. 24. s. 3.; and that, as it did not set out the evidence (and, per Patteson and Williams Js., as it did not in form adjudge any imprisonment), it was bad in the character of a conviction. Prisoner discharged. |