KING'S BENCH DIVISION.

Wednesday, May 11, 1904.

(Before Lord ALVERSTONE, C.J., WILLS and KENNEDY, JJ.) BANNISTER (app.) v. SULLIVAN (resp.). (a)

Vagrancy Act, 1824 (5 Geo. 4, c. 83), s. 4-Maintenance of children-Running away leaving children chargeable to parish -Conviction for-Omission on expiration of imprisonment to remove children from workhouse-Fresh offence-Liability to second conviction Defect in form of information-Divided Parishes and Poor Law Amendment Act, 1876 (39 & 40 Vict. c. 61), s. 19.

A person who has been convicted and imprisoned under sect. 4 of the Vagrancy Act, 1824, and sect. 19 of the Divided Parishes and Poor Law Amendment Act, 1876, for running away and leaving his children whereby they have become chargeable to the parish, may be proceeded against and convicted a second time for running away and leaving his children chargeable, unless on his release from prison he takes his children out of the workhouse and removes their chargeability, as the leaving his children in the workhouse chargeable to the parish after his release from prison constitutes a fresh substantive offence, for which he may be punished a second time; and he may be convicted for this fresh offence upon an information which charges him with running away and leaving his children whereby they have become and are now actually chargeable to the parish," as the defect in the form of the information by reason of the children being already chargeable can be cured by sect. 1 of the Summary Jurisdiction Act, 1848.

CASE

ASE stated by a metropolitan police magistrate, sitting at the Marylebone Police-court.

On the 15th, 22nd, 23rd, and 28th days of December, 1903, the respondent was brought before the magistrate under a warrant for his arrest granted on the 22nd day of January, 1903, to answer to an information laid under sect. 4 of the Vagrancy Act, 1824 (5 Geo. 4, c. 83), and sect. 19 of the Divided Parishes and Poor Law Amendment Act, 1876 (39 & 40 Vict. c. 61), by the appellant, who was the general relieving officer to the guardians of the poor of the parish of Paddington, alleging that the respondent "did on or about the 15th day of December, 1902, unlawfully run away, leaving his three children whom he is legally bound to support and maintain, whereby they (a) Reported by W. W. ORR, Esq., Barrister-at-Law.

v.

BANNISTER have become and are now actually chargeable to the said parish of Paddington, contrary to the statute in that case made and provided."

SULLIVAN.

1904.

VagrancyMaintenance

Copies of the information and warrant were annexed to and formed part of the case.

Upon the hearing of the information the following facts were

of children- proved on behalf of the appellant:

DesertionRunning away and

leaving

Children in

workhouse Failure to

sentence5 Geo. 4,

(a) In 1899 the respondent ran away from his three children, whom he was legally bound to maintain, and his children thereby became chargeable to the parish of Paddington, and they had chargeable since been maintained by the Paddington Board of Guardians at the expense of about 250l. to the common fund of the parish. (b) On the 13th day of November, 1900, the respondent was remove after convicted for running away and leaving his children on the 7th expiration of day of November, 1899, whereby they became chargeable as aforesaid, and was sent to prison for one month. When the respondent came out of prison he went to the appellant's office, and was told by the appellant that he must take steps to take his children out of the Paddington Workhouse. This, however, the respondent failed to do, and the children remained in the workhouse. In January, 1903, a warrant was granted for the apprehension of the respondent for unlawfully running away on the 15th day of December, 1902, two years from the date of his release from prison, "leaving his three children, whom he is legally bound to maintain, whereby they have become and are now actually chargeable to the said parish of Paddington."

c. 83, s. 4; 39 & 40 Vict. c. 61, 8. 19.

There was evidence that during this interval of time the guardians had published an offer of a reward of 20s. for the respondent's discovery, and search had been made for the respondent by the police and by the guardians, but beyond the fact that the search was unsuccessful there was nothing to show that the respondent was wilfully hiding.

The appellant contended that by leaving his children in the workhouse after he came out of prison the respondent had run away and left his children, whereby they became chargeable to the parish of Paddington, contrary to the provisions of sect. 4 of the Vagrancy Act, 1824 (5 Geo. 4, c. 83), and that he had therefore committed a fresh offence, and was liable to conviction therefor under that section and sect. 19 of the Divided Parishes and Poor Law Amendment Act, 1876; and it was further contended that, if there were no fresh offence in law, the respondent was guilty of a continuing offence day by day, until such time as he removed the chargeability.

The magistrate ordered the respondent to be discharged, inasmuch as he was of opinion that, as his children had been continuously chargeable since the 7th day of November, 1899, they had not become chargeable to the parish of Paddington by reason of the respondent's not removing them

workhouse after he came out of prison; and that the respondent had committed no fresh offence, and having been convicted and

v.

punished for having run away and left his children, whereby BANNISTER they became chargeable to the parish on the 7th day of SULLIVAN. November, 1899, he could not, under the circumstances hereinbefore stated, be convicted for continuing the offence on the 15th day of December, 1902.

1904.

VagrancyThe question of law for the opinion of the Court was whether Maintenance or not the magistrate ought to have convicted the respondent on of childrenthe facts above stated. And the Court was asked to remit the Desertion— case to the magistrate, with its opinion thereon.

Sect. 4 of the Vagrancy Act, 1824 (5 Geo. 4, c. 83), provides: Every person running away and leaving his wife, or his or her child or children, chargeable, or whereby she or they or any of them shall become chargeable, to any parish, township, or place; shall be deemed a rogue and vagabond, within the true intent and meaning of this Act; and it shall be lawful for any justice of the peace to commit such offender (being thereof convicted before him by the confession of such offender, or by the evidence on oath of one or more credible witness or witnesses) to the house of correction, there to be kept to hard labour for any time not exceeding three calendar months.

Running away and leaving

chargeable

Children in

workhouse-

Failure to remove after expiration of

sentence5 Geo. 4, c. 83, 8. 4; 39 & 40 Vict.

Sect. 19 of the Divided Parishes and Poor Law Amendment c. 61, s. 19. Act, 1876 (39 & 40 Vict. c. 61), provides:

Proceedings may be taken against any person who runs away and leaves his wife or his or her child chargeable, or whereby she or they or any of them shall become chargeable to any union or parish at any time within two years after the commission of the offence, and a summons or warrant in respect thereof may be issued upon the information of any relieving officer of the guardians stating that relief has been applied for on behalf of the wife or child, and that he is informed and believes that the husband or parent, as the case may be, has left the wife or child and gone away, any law or statute to the contrary notwithstanding. The justices to hear the complaint against a husband, under the thirty-third section of the Act of the thirtyfirst and thirty-second years of Her Majesty, chapter one hundred and twenty-two, may be other than those who summoned him to appear before them, but acting for the same petty sessional division.

Sect. 1 of the Summary Jurisdiction Act, 1848 (11 & 12 Vict. c. 43), provides:

Provided also, that no objection shall be taken or allowed to any information, complaint, or summons for any alleged defect therein in substance or in form, or for any variance between such information, complaint, or summons, and the evidence adduced on the part of the informant or complainant at the hearing of such information or complaint as hereinafter mentioned; but if any such variance shall appear to the justice or justices present and acting at such hearing to be such that the party so summoned and appearing has been thereby deceived or misled, it shall be lawful for such justice or justices, upon such terms as he or they shall think fit, to adjourn the hearing of the case to some future day.

Danckwerts, K.C. (R. Cunningham Glen with him) for the appellant, on behalf of the Poor Law Authorities.-The learned magistrate held that, as this man had been convicted once before for running away, whereby his children became chargeable to the parish, and as they were still chargeable when he came out of prison, he committed no fresh offence merely by not removing them from the workhouse after he came out of prison, and that therefore he could not be convicted for continuing the offence. The attention of the magistrate evidently was not called to the proviso at the end of sect. 1 of the Summary Jurisdiction Act,

v.

SULLIVAN.

1904.

BANNISTER 1848, which enacts that no objection shall be taken in respect of any alleged defect in the substance or form of any information or summons, or for any variance between such information or summons and the evidence adduced for the complainant, but that if the party summoned would be likely to be misled by such VagrancyMaintenance variance the justices have power to adjourn the hearing. No of children— doubt, in the present case the information was drawn in the Desertion form, that on the 15th day of December, 1902, the respondent

Running away and

leaving chargeable

Children in workhouse

Failure to

remove after

sentence5 Geo. 4,

c. 83, s. 4;

c. 61, s. 19.

unlawfully ran away, leaving his children "whereby they have become and are now chargeable," and so on; and the magistrate thought that, as they had already become chargeable, and were still, at the date of the information, chargeable, the respondent could not be convicted a second time for running away whereby they became chargeable. But on referring to sect. 4 of the expiration of Vagrancy Act, the offence is running away and leaving his children "chargeable," or "whereby they shall become chargeable"; so that a person commits an offence under that section 39 & 40 Vict. either if he runs away whereby his children afterwards become chargeable, or if he runs away leaving his children then actually chargeable. The information here was that the respondent did, on the 15th day of December, 1902, unlawfully run away leaving his children "whereby they have become and are now actually chargeable." If the words "whereby they have become and are now "had been left out, then the information would have been all right under sect. 4 of the Vagrancy Act, as it would have been "leaving his children actually chargeable." This was simply a defect in form, or at most a variance between the evidence adduced and the information which the magistrate ought to have dealt with under sect. 1 of the Summary Jurisdiction Act, 1848. The offence is explained by Erle, C.J. in Cambridge Union v. Parr (4 L. T. Rep. 323; 10 C. B. N. S. 99, at p. 102): "The 5 Geo. 4, c. 83, s. 4, was, think, directed against persons running away, in the sense of absconding or concealing themselves, or absenting themselves to a long distance, and leaving their wives or children chargeable to the parish." That shows that the offence really is leaving them "chargeable" to the parish. [Lord ALVERSTONE, C.J.The whole point which we have to consider is whether this mistake in the information makes any difference.] It makes no difference whatever, because under sect. 1 of the Summary Jurisdiction Act, 1848, the magistrate had full power to deal with and correct that mistake, and he was bound to do so. If those few words were struck out of the information, it would be all right. [Lord ALVERSTONE, C.J.-Is there any authority in favour of the magistrate's view?] Absolutely none. Sect. 19 of the Divided Parishes and Poor Law Amendment Act, 1876, also shows that it is an offence for a man to run away and leave his children “ chargeable," as well as to run away and leave whereby they shall become chargeable." [He was

them "

stopped.]

I

The respondent did not appear.

BANNISTER

บ.

SULLIVAN.

1904.

Running

away and leaving

Children in workhouseFailure to

remove after expiration of

sentence5 Geo. 4,

c. 83, s. 4;

Lord ALVERSTONE, C.J.-In my opinion this case must be sent back to the magistrate with a direction to convict. On the point that the information contained the words "did unlawfully run away leaving his three children, whom he is legally bound. Vagrancyto maintain, whereby they have become," and so forth, in all Maintenance probability the form of the information ought to have been of childrenamended; but I think, as the statute and as the evidence Desertion— establish the offence, we ought not to give effect to the objection to the form of the information, nor do I understand that to have been the ground of the magistrate's decision. The ground chargeableof the magistrate's decision was that the respondent had been previously punished for running away and leaving his children whereby they had become chargeable, and that therefore there was not another offence committed by him. With great deference to the learned magistrate's opinion, I think he was not right. It seems to me that after the respondent came out of prison his duty to maintain his children revived, if I may use that expression; but he runs away without removing his children, and therefore his so running away is a substantive offence. When he came out of prison he asked what he would have to do. He called at the appellant's office, and he was told that he must take steps to take the children out of the workhouse, but he ran away again. The fact that they were in the workhouse at the time is no reason that he should not be punished, and there is in effect a fresh substantive offence. It seems to ine that the case is the same as Cambridge Union v. Parr (4 L. T. Rep. 323; 10 C. B. N. S. 99). Any other result would be rather serious, because if a man ran away once and was punished, he would get rid of any responsibility for supporting his children by simply absconding. I think the case must go back to the magistrate with a direction to convict.

WILLS, J.-I am of the same opinion. I think the conviction of the respondent ought to be for running away and leaving his children chargeable to the parish.

KENNEDY, J.-I am of the same opinion. It seems to me that there was evidence that the respondent was, within the decision of Cambridge Union v. Parr (ubi sup.), leaving his children chargeable to the parish, and the offence was not properly charged in the information. That might have been a matter for adjournment if there had been any question of surprise or the like. But it is not the point raised for our decision. The point raised is whether or not there should be a conviction, seeing that the respondent had been convicted before, and that the children remained in the workhouse, and there was no fresh state of facts. I think there was enough to justify a conviction.

Appeal allowed. Case remitted to the magistrate to convict. Solicitors for the appellant, Collins and Cook.

39 & 40 Vict.

c. 61, s. 19.