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It must appear
party to be relieved is become chargeable to the parish ; for unless he be Secondly, Of so, the parish has no ground of complaint. 16 Vin. Ábr. 424; Rex v. the order of Tripping, 1 Bott, 430; 2 Nol. P. L. 264; Ld. Raym. 699.
maintenance. And an order may be that the grandfather shall pay so much for the time past while the grandchild was chargeable, as well as for the time to come, that pauper is the father being living, but unable to do it. Reg. v. Joyce, 16 Vin. Abr. 423. chargeable.
On pain of 208. a month — to be levied by distress.] Mr. Christian has Penalty of 20s, a supposed (1 Bla. Com. 448, note 1) that the relations mentioned in the month for disobe
dience, but the 43 Eliz. c. 2, can only be compelled to allow each other 20s. a month, or order of mainte131. a year ; but he has not distinguished between the power to award a nance to a larger sufficient maintenance and the punishment for the breach of the order. The enforced by inamount of maintenance is in the discretion of the magistrates, and they may dictment. order much more than 20s. a month. And if the party disobey the order by not paying that sum, though exceeding 20s. a month, he may be indicted. 2 Burr. 799.
Rer v. Robinson, 2 Burr. 799; 1 Bott, 455; 2 Nol. P. L. 265. The defendant was indicted for refusing to obey an order of sessions, for maintaining his two infant grandchildren. It was moved in arrest of judgment, and urged, that this is a new offence: and where a statute creates a new offence, and gives a particular penalty, and a specific method of recovering the same, that course ought to be pursuerl, and the party shall not be punished by indictment.—By Lord Mansfield, C. J. The rule is certain, that where a statute creates a new offence by prohibiting and making unlawful any thing that was lawful before, and appoints a specific remedy against such new offence by a particular sanction and particular method of proceeding, that method 'must be pursued, and no other ; but where the offence was antecedently punishable by a common-law proceeding, and a statute prescribes a particular remedy by a summary proceeding, there either method may be pursued, and the prosecutor is at liberty to proceed either at common-law, or in the method prescribed by the statute; because there the sanction is cumulative, and doth not exclude the commonlaw punishment. In the present case a remedy existed before the statute of the 43 Eliz. For disobedience to an order of sessions is an offence indict- Indictment will able at common-law. So that here are two remedies: one, to proceed by to obey the order way of indictment for disobeying the order, where the weekly payment is of sessions. neglected or refused to be made, the other, to distrain for the 208. penalty after neglect of payment for a month. The former method has been taken in the present case; and there is no doubt but that an indictment will lie for disobeying an order of sessions. And the Court were unanimously of opinion that the judgment ought not to be arrested.
An order of maintenance must be positive, not by recommendation; it of appealing must observe the words of the statute, and state how long the maintenance against the order. is to continue. Rex v. Pennoyer, 1 Bott, 433. Under the 43 Eliz. c. 2, s. 6, the party against whom the order has been made may appeal against it to the justices at general quarter sessions, who upon evidence and consideration of the circumstances and ability of the party, may reduce the allowance or discharge the order.
Since disobeying an order of justices is an offence at common-law, (vide Rex v. Balme, Vol. III. tit. Endictment, s. 2,) the law of the above case also applies to orders made by two or more justices in petty sessions, under stat. 59 Geo. III. c. 12, s. 26, ante, 165; 22 Geo. III. c. 83, s. 31.
(Thirdly)-Of Persons deserting, or absent from their families.
5 Geo. I. c. 8; 59 Geo. III. c. 12, s. 31 & 32; 5 Geo. IV. c. 83, s. 3, Thirdly, Of perand 11 Geo. IV. c. 10, s. 2.
sons deserting, or Stat. 5 Geo. I. c. 8. “ An act for the more effectual relief of such wives absenting themand children as are left by their husbands and parents upon the charge of selves from their the parish. Whereas divers persons run or go away from their places of families. abode into other counties or places, and sometimes out of the kingdom,
may seize the
accountable for the monies so received.
Thirdly, Of per- some men leaving their wives, a child, or children; and some mothers rin sons deserting, or go away, leaving a child or children, upon the charge of the parish or &c.
place where such child or children was or were bom, or last legally settled, although such persons have some estates, which should ease the parish of their charge, in whole or in part: May it please your Majesty, therefore, that it may be enacted, and be it enacted by the King's most excellent Majesty, by and with the advice and consent of the lords spiritual and temporal, and
commons, in this present parliament assembled, and by the authority of the Churchwardens, same, that it shall and may be lawful for the church wardens or overseers of &c., by warrant of two justices,
the poor of such parish or place where any such wife, or child or children
shall be so left, upon application to, and by warrant or order from any two ofiender's goods, justices of the peace, to take and seize so much of the goods and chattels,
and receive so much of the annual rents and profits of the lands and tenements of such husband, father or mother, as such two justices of the peace, as aforesaid, shall order or direct, for or towards the discharge of the
parish or place where such wise, child or children are left, for the bringing And hy order of up and providing for such wise, child or children; which warrant or order quarter sessions being confirmed at the next quarter sessions, it shall be lawful for the dispose thereof.
justices of such quarter sessions to make an order for the churchwardens or overseers for the poor of such parish or place, to dispose of such goods and chattels by sale, or otherwise, or so much of them, for the purpose aforesaid as the court shall think fit, and to receive the rents and profits, or so much of them as shall be ordered by the sessions, as aforesaid, of his or her lands
and tenements, for the purpose aforesaid.” Churchwardens By s. 2. The church wardens and overseers aforesaid shall be accountable
to the justices at the quarter sessions for all such money as they, or any of
them, shall receive by virtue of this act. Punishment as a
The 5 Geo. IV. c. 83, s. 3, enacted, that persons being able but wilfully neglecting to work to support their families, whereby they shall become chargeable to the parish, shall be deemed idle and disorderly persons punishable by imprisonment and hard labour, not exceeding a month. And the fourth section declares that “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, punishable as therein men
tioned.”_See tit. Vagrants. Application of The 59 Geo. III. c. 12, s. 31 & 32, contains provisions for the application scamen’s wages. of the wages of Greenwich pensioners, seamen, and other persons in public
employments, who desert or are absent from their families. (Post, 181, 2.)
And the 11 Geo. IV. c. 10, contains provisions for the appropriation of half of the pay of men convicted under the laws for the prevention of smuggling, and sentenced to serve his Majesty in his naval service; and any one or more of the church wardens and overseers of the poor of the parish where the wife or family have become chargeable, may complain on oath to two justices, who are to transmit their certificate to the commissioners of the navy, specifying the proportion of wages necessary for relief of the parish, not exceeding one half, and which commissioners are to take the requisite measures to cause the same to be paid to the person named in the certificate to
be applied to the relief of the parish. See post, 183. Order of two jus- Stable v. Dixon, 6 East, 163; 1 Bott, 457; 2 Nol. P. L. 238, 239, 305.
The plaintiff declared in convenant for a year's rent. To the declaration goods or rents
there were four several pleas, of which the last only is material here. In should be seized, this the defendant pleaded as to 71. 16s. parcel of the rent, that before the and must specify 25th of March, 1803, (when the rent became due), the plaintiff had gone the quantum of
away from his place of abode (at Corney) into some other place, leaving his propriated out of wife chargeable to Corney ; that he continued away from the 24th of June, case of rents must 1801, to the time of the action brought, and that during all that time she limit the period continued chargeable; that it thereupon was necessary that she should be of such appropriations.
maintained by the parish: whereupon, upon application of the churchwardens of the parish, a warrant was directed by two justices to the said churchwardens and overseers, whereby (reciting as usual) they the said justices authorised and commanded the said churchwardens and overseers
tices must state how much of the
relief to be ap
of Corney, to receive the annual rents and profits of the lands and tenements Thirdly, Of perof the plaintiff at Bromhill, in the parishes of B. and W. in the county of sons deserling, C'umberland (the same being the lands and tenements demised to the
&c. defendant,) for and touards the discharge of the said parish at Comey, for the providing for the plaintiff's wife, &c. That on the 18th of July, 1801, the order was, in pursuance of the statute, confirmed by the Court; and the Court did then and there order the said churchwardens and overseers, &c., to receive 71. 16s. rent of the rents and profits of the lands and tenements of the plaintiff at B., in the parishes of B. and W., &c. being the premises so demised to the defendant for and towards the discharge of the said parish of Corney for the providing for the said D. S., the plaintiff's wife. And then the plea alleged payment thereof by defendant. To this the replication was, inter alia, that on the first of October, 1801, the said 71. 168. in the said order of sessions mentioned, was paid by defendant to the then churchwardens and overseers of Corney, pursuant to the said order, and that on the 25th of March, 1802, the said 71. 16s. was allowed by the plaintiff to the defendant out of the rent. To this replication it was, by the defendant, rejoined, that the said sum of 71. 16s. so mentioned in the fourth plea to have been so paid, was another and a different sum of 71. 168. than the sum of 71. 16s. so deducted and allowed as aforesaid, viz. for the second year's payment under the said order in the said plea mentioned. To this there was a demurrer and joinder in demurrer. Holroyd, in support of the demurrer, made three objections : 1st, That the original order was void ; 2nd, That the sessions had no original jurisdiction, and that therefore nothing done by them upon a void order could make it good ; 3rd, That if the order of sessions were good, it had been complied with by plaintiff
. Upon the first he urged, that the original order was void, as being prospective, to seize the rents and profits for future expences ; or if it might be prospective, still it did not ascertain the quantum of relief required by the parish, conforınably with the words “ so much” in the statute, and cited Rex v. Chaffey, 2 Ld. Raym. 858. Upon the second he said, that the sessions had it only in their power to confirm the order, and direct a sale, and (perhaps) vary the sum before directed to be levied. Upon the third, that if the sessions could remedy any defect in the original order by ascertaining the sum to be raised, they bare fixed it at 71. 168., and that sum is by the pleadings admitted to be paid and deducted out of the rent: the order therefore is functus officio ; for it does not state that the same sum shall be raised annually. Wigley, in answer to these points, said that the order in question followed the precedent in Burn's Justice; and observed, " that so much of the rents and profits" must mean of the “annual rents," &c.—Lord Ellenborough, C. J. T'he 5 Geo. I. gave to magistrates a power of appropriating to the parposes of the act so much of the goods and chattels, and so much of the annual rents and profits of the party, as they should order and direct, or as the sessions afterwards, to whose confirmation such order is to be submitted, should think fit. But it never was meant to invest the parish officers or magistrates with a right to take indefinitely all the property of such a person without apportioning how inuch of it was to be taken for that purpose. The language of the act is, that the goods and chattels, &c., are to be taken for or towards the discharge of the parish ; which imports that it was to relieve the parish from a burthen already incurred, and which was therefore capable of being then ascertained. But even if they had a prospectire power, still the justices are to ascertain how much is to be taken. The act expressly says, the officers shall take so much as the justices shall order. The original warrant then being made in the exercise of an indefinite instead of a limited authority, and being void in that respect, the next question is, Whether it were capable of receiving confirmation from the sessions ? and assuming that it could, as capable of limitation in respect of the sum to be take by the parish officers (for they seem there to have abandoned the ground of an indefinite seizure), then can the order of sessions be sustained beyond the terms of it, as an order to receive the sum of 71. 168. ? Admitting that it might be good to that extent, as an order to receive a definite sum (subject however to the objection to it as a confirmation of an original indefinite order of seizure), the answer is, that the sum is already paid and allowed : but taking it as it is now contended for, as an
Thirdly,Of per- order to receive that sum annually out of the rents and profits without any sons deserting, Imitation of time, the objection applies, that for want of such limitation, as, &c.
“ till some other order made,” it is void by the authority of the case mentioned. Therefore, unless the order of sessions be understood as limited to raise 71. 16s. once for all, that would be invincibly bad; and if so understood, the order has been satisfied.—Grose, J., agreed.--And by Laurence,J. If the order of sessions had intended that more than one sum of 71. 16s. should be taken, they should have said so more distinctly, by adding the word “ annually,” or “ till further order.”—Besides, if the order were illegal, he should have refused payment, and if indicted for disobedience he might have defended himself; or he might have brought an action of trespass if his goods had been distrained, for he would not have been concluded, by an order to which he was no party, from showing that it was illegal. But I think the order of sessions only meant that one sum of 71. 16s. should be taken. Judgment for the plaintiff.
It has been held, that if a man refuse to maintain his wife, but neverthe
less remains in the parish, no order can be made on 5 Geo. I. c. 8, to seize remain in the
his effects; but the wife must have recourse to the common remedy of suing parish, his effects cannot be seized for alimony; or any one who supplies her with necessaries, may have bis
action against the husband for money expended to his use. Rex v. Justices support. The act applies to run.
of Kent; Burn's Justice, 25th edit. aways only. For the punishment of those who desert their wives and children, see title,
Vagrants, Vol. V., and ante, 172.
If the wife has committed adultery, the husband is not liable to the penalty
in 5 Geo. IV. c. 13, for refusing to maintain her. Rex v. Flinton, 1 Bar, his wife an adul. & Adolph. 227 ; post, Addenda, 848. tress.
If the husband
for his wife's
Husband not liable to maintain
Order to seize parents or hus. band's yoods, &c.
Form of an order to seize the Goods and receive the Rents of the Lands of
Parents or Husbands having run away.
in the said county.
of his goods and chattels, and to receive so much [insert the sum] of the annual rents and profits of the lands and tenements of him, the said A. O., at
aforesaid (a), for and towards the discharge of the said parish, for the providing for his said wife, and bringing up and maintaining of his said children : And with this warrant you are to appear at the next quarter sessions of the peace to be holden for the said county, and certify then and there what you shall have done in the execution hereof.
Given under our hands and seals, at in the said county, the day of
(See the preceding case of Stable v. Dixon, p. 172.)
in the year
(Fourthly)—Of the Mode of relieving and ordering of the Poor.(6) Fourthly, Mode
By the several statutes, the poor were to resort or be sent to their own of relief and or. parishes to be relieved ; and in Clypton v. Ravistock, Sett. & Rem. 49; dering of the
2 Nol. P. L. 369 ; it was adjudged as follows: There was an order reciting, poor.
(a) If the order extend to lands, then soldiers and militia-men, see Vol. III. say,
“ until further order made." tit. Military Law. (b) As to Bastards and their Filiation, As to Pauper Lunatics, see Lunatics, see Bastards, Vol. I.
Vol. III. of Relief to the wives and families of
Poor to be main
8. I, as to mode
that John Saunderson and his wife were last settled in Clypton ; then order. Fourthly, Mode ing the church wardens of Clypton to repair to the parish of Ravistock, and of relief, &c. to relieve them, being so sick that they cannot be removed.-By the Court : The justices have no authority to send for officers out of another parish, but tained in the the parish where the poor reside are bound to maintain them as long as they parish where continue
with them. But in the case of Darlington v. Hemlington, (Dougl. they are ; 9 n. 2, Cald. 6; 2 Bott, 16; 2 Nol. 369, see post, Settlement by Birth of Bastards) where two bastard children, settled at Darlington, resided with excepting in the their mother as nurse-children in the parish of Hemlington, where the case of bastards, mother was settled : it was determined that the parish where the children's being purse
. settlement was, should maintain those children in that other parish.
By 43 Eliz. c. 2, s. 1, the church wardens and overseers, with the consent The enactment of two justices, shall take order from time to time, for setting to work the of 43 Eliz.c. 2, children of all such whose parents shall not by the said churchwardens and
of relief, &c. overseers, or the greater part of them, be thought able to keep and maintain their children ; and for setting to work all such persons, married or unmarried, having no means to maintain them, and using no ordinary and daily trade; and for the necessary relief of the lame, impotent, old, blind, and such other among them being poor, and not able to work.
Sect. 4. And the said justices, or one of them, shall send to the house of correction, or common gaol, such as shall not employ themselves to work, being appointed thereunto as aforesaid.
Rex v. Collet, 3 D. f. R. 582; 2 B. & C. 324. This was an appeal Overseers of the against an order of two justices for the allowance of the accounts of poor must endea: the overseers of the poor of the parish of Kelsale, confirmed by the sessions for able-bodied subject to the following case : The appellant, Mr. C., is the proprietor of a poor who are out considerable estate in the parish of K., a part of which is in his own occu- Quere, whether pation. In consequence of the depression in the price of agricultural they can legally
relieve such perproduce, the farmers have been rendered unable to make any improvements
sons by money on their lands, and consequently have employed few labourers, by which payments, or means a considerable part of the labouring population has been totally otherwise than unemployed; and during this period, all poor persons belonging to the box setting them parish, who had been unable to obtain employment, have received sums of ing them for their money for their maintenance from the parish officers in proportion to the number of their respective families, for which no labour has been required from them. The appellant being dissatisfied with this application of the parish funds, appealed against the overseers' accounts. The respondents, upon hearing of this appeal, admitted that the persons to whom the sums objected to in the account were paid, were in fact both able and willing to work, but that no employment could be obtained for them, which the appellant contended the oversers were bound to provide, pursuant to stat. 43 Eliz. c. 2, although no evidence was adduced to prove that the overseers could have employed the labourers. It also appeared, that none of the sums objected to were paid under or in consequence of any orders from a magistrate. The parishioners were accustomed to meet once a week at the parish workhouse, at which meetings all applications for relief were received, and where all labourers belonging to the parish, who had not in the preceding week been in constant employment, attended to give an account of their earnings, and received such sums as, with the earnings, should amount to a sum deemed competent to their maintenance in proportion to the number of their children. In several cases it appeared, that able-bodied men with four or five children, having had no employment in the preceding week, received from the overseers from 7s. to 8s. 6d. for the week; having been employed three days, 3s. 6d. to 4s. per week; having been employed two days, 5s. per week; and so in proportion to the number of their children and the amount of their week's earnings. And in all cases this relief was afforded to these persons, solely on the ground of their having been out of employment, without reference or enquiry as to any means they might have of raising money for the supply of their immediate wants by sale or pledge of their household effects; and that in many instances, the weekly relief was afforded to various able-bodied labourers for many weeks in succession.
After hearing counsel upon both sides,—Abbott, C. J. It does not