A man is not liable to the pe nalty of 5 Geo. 4, c. 83, s. 3, for neglecting and refusing to main tain his wife, who has left him and committed adultery; although he himself has been guilty of adultery since her departure. provisions which are enacted in that statute as to the form of plea, &c., are case PP. 166, 172.—Rex v. Flintan, 1 Bar. & Adolph. 227. Upon appeal by the defendant against a conviction under the hand and seal of Sir P. Laurie, alderman, and a justice of the peace for the city of London, whereby the defendant was convicted as an idle and disorderly person, within the true intent and meaning of the statute, for refusing to maintain his wife, Elizabeth Flintan, although able to maintain her: by reason whereof she became chargeable to the parish of St. Andrew by the Wardrobe, in the city of London, the sessions confirmed the conviction, subject to the opinion of this Court on the following case:-Elizabeth Flintan, the wife of William Houghton Flintan, became chargeable to the parish of St. Andrew by the Wardrobe, in the city of London, on the 20th of February, 1829, and received, from that time to the time of the conviction, four shillings a week from the said parish. The said W. H. Flintan was then able wholly to maintain his wife. The said W. H. Flintan and his wife cohabited together for some years previously to and until the 26th of November, 1826, when they quarrelled on account of her having pawned some of their plate; and on the following day she quitted his house in his absence, and without his knowledge, and has not resided with him since. Elizabeth Flintas subsequently sued her husband for alimony, in the consistory court of the Bishop of London, by reason of adultery commited by the husband, who produced, in his defence, evidence of adultery committed by his said wife; and the Court, by interlocutory decree having the force and effect of a definitive sentence, pronounced, decreed, and declared that the libel, additional articles, and allegations given in this cause on behalf of E. Flintan, had been proved, and that W. H. Flintan had been guilty of adultery as therein charged; and the Court further pronounced, that the recriminatory allegation on W. H. Flintan had also been proved, and that the said Elizabeth Flintan had been guilty of adultery as therein pleaded, and therefore dismissed W. H. Flintan from the citation issued against him in this suit, and all further observance of justice therein. The adultery which was proved upon the wife had been committed while she lived with her husband, and without his knowledge or subsequent condonation; the adultery proved upon him did not take place till after that time, and after she had left him. The question for the opinion of this Court was, Whether W. H. Flintan was, at the time of the said conviction, legally bound, under these circumstances, to maintain his wife, within the meaning of the 5 Geo. IV. c. 83, s. 3? (a)—Bayley, J. This case is very clear. By the statute 5 Geo. IV. c. 83, s.-3, a man is criminally answerable for refusing to maintain any of his (a) Which enacts, that every person being able wholly or in part to maintain himself or his family by work or by other means, and wilfully refusing or family whom he is legally bound to maintain. That obligation must be made out; and it is not established in the case of a wife who has left her husband and lives in adultery.—Littledale, J. I do not see the distinction attempted between the parish and an individual supplying necessaries. If the husband is not obliged to answer for the wife's contracts, or to receive her into his house, it cannot be said that he is "legally bound to maintain her."-Parke, J. It would be strange if the Court could hold that a man was not civilly liable for the supply of necessaries to his wife, and yet that not supplying them rendered him a vagrant. Conviction quashed. P. 212. It is deemed expedient to state more at length the case of Clark v. King, 2 Younge & J. 525, there stated. Debt on bond, upon the money counts, and an account stated. The defendant set out the condition of the bond upon oyer, as follows:-Whereas the select vestry of the parish of Winterbourne advertised to let the poor of the said parish to farm; and at a meeting of the said select vestry for that purpose held on the 6th day of March instant, the said Mark King offered to provide for, maintain, sustain, and keep all the poor of the said parish of Winterbourne, as shall be lawfully entitled to relief and maintenance, for one whole year, from the 25th day of March instant, until the 25th day of March, 1827, for the sum of 7501., to be paid to him the said Mark King by the churchwardens and overseers of the poor of the said parish of Winterbourne, by fifty-two equal weekly payments, the first weekly payment to be paid in advance (that is to say), on the 27th day of March instant: And whereas the said churchwardens and overseers of the poor of the said parish have entered into a contract, bearing even date herewith, with the said Mark King, to pay to him the said sum of 7501. by fifty-two weekly payments as aforesaid, for providing for, maintaining, and sustaining the poor of the said parish for one year, according to the terms and conditions specified in the said contract; and the said Mark King agreed to provide a good and sufficient surety for the due observance and performance of the covenants and agreements contained in the said contract, and hath proposed the abovebounden Joseph King as his said surety; and the said churchwardens and overseers have agreed to accept him the said Joseph King as such security; And whereas the said Joseph King hath agreed to join with the said Mark King in the above-written bond or obligation, as the surety of the said Mark King, for the due and punctual observance and performance of the covenants and agreements contained in the aforesaid in part recited contract. Now therefore the condition of the above-written bond or obligation is such, that if the said Mark King do and shall from time to time, and at all times hereafter, during the said term of one year, commencing on the said 25th day of March instant, and ending on the 25th day of March, 1827, duly and faithfully do and perform all and every the covenants, conditions, and agreements, contained in the said contract above referred to, then the above written bond or obligation shall be void and of no effect; but otherwise shall be and remain in full force and virtue. He then pleaded, amongst other things, by his third plea, that the contract in the condition of the bond, alleged to have been entered into by the churchwardens and overseers of the poor of the said parish of Winterbourne, was not entered into or made with the consent of the major part of the parishioners of the said parish, or any of them in vestry or other parish or public meetings for that purpose assembled, upon usual notice thereof first given. To this plea the plaintiff replied, that the contract in the condition mentioned, was entered into and made with the consent of the select vestry of the said parish, duly established for the care and management of the concerns of the poor of such parish, and neglecting so to do, by which refusal or neglect he or any of his family whom he may be legally bound to maintain, shall have become chargeable to any parish, &c., shall be deemed an idle and dis orderly person, within the true intent the care and the poor, con The consent of a select vestry for management of the concerns of stituted and established according to the prostatute 59 Geo. 3, c. 12, is sufficient contract under the statute 9 Geo. 1. c. 7, s. 4, for ing, and maintaining the poor visions of the to render valid a the lodging, keep of a parish. duly assembled for that purpose, upon notice thereof first given. The defendant rejoined, that the select vestry in the replication mentioned was not a meeting of the parishioners of the parish in vestry or other parish meeting assembled; to which the plaintiffs demurred generally, and the defendant joined in demurrer.-Manning, in support of the demurrer. The rejoinder of the defendant to the replication of the plaintiffs to the third plea of the defendant, is no answer to that replication. This depends upon the construction of the statutes 9 Geo. I. c. 7, s. 4, and 59 Geo. III. c. 12. By the former statute, the churchwardens and overseers of the poor in any parish, town, township, or place, with the consent of the major part of the parishioners or inhabitants of the said parish, town, township, or place, in vestry or other parish or public meeting for that purpose assembled, or so many of them as shall be so assembled, upon usual notice thereof first given, are empowered to contract with any person or persons for the lodging, keeping, maintaining, and employing, any or all such poor in their respective parishes, townships, or places, as shall desire to receive relief or collection from the same parish; and the question is, Whether, by the latter statute, the controlling power, formerly vested in the body of the parishioners at large, is conferred upon the select vestry? Now that statute authorizes the inhabitants of any parish, in vestry assembled, to establish a select vestry for the care and management of the concerns of the poor of the parish, by the nomination and election of a certain number of inhabitant householders or occupiers, who, with the minister of the parish, and the churchwardens and overseers for the time being, are to constitute a select vestry for the care and management of the poor. The effect of this enactment is, that all powers relating to the care and management of the poor originally vested in the body at large, are now, where a select vestry is appointed, transferred from the general body to the select vestry, as representing the parishioners at large.--Chilton, contra. The statute 9 Geo. I. c. 7, s. 4, made that lawful, which before that time the churchwardens and overseers had no authority to do; but, at the same time, careful of the interests of the poor, the legislature vested a controlling power in the parishioners at large. The question then is, Whether, by the late statute, all powers formerly possessed by the parishioners generally, are vested in the select vestry? Arguing from the letter of the enactment, no such conclusion can be drawn, for there is no allusion to the previous provisions, nor are there any general words by which that authority is delegated, nor does the spirit of the statute, or the reason of the thing, support such a construction. Where the care and management of the poor is to be subject to the control of a large and tumultuous body, it may be prudent and politic to delegate, with the consent of the majority of that body, the direction of the poor to a single individual; but where that power is vested in a few, the necessity ceases, and the select vestry may discharge that duty personally, which the parishioners generally could only do effectually through the instrumentality of another.-Hullock, B. The question in this case is, Whether the select vestry is or is not substituted in lieu of the larger and more tumultuous body of the parishioners generally? It is admitted upon the pleadings, that the select vestry is duly constituted in point of law, and that this contract relates to the care and management of the concerns of the poor. Wherever a select vestry is appointed, the right of the common law vestry has always in practice been considered as de facto superseded; and the language of this act of parliament appears to me to confer upon that body the authority relative to the care and management of the poor, which the parishioners at large were before in the habit of exercising. I think that the power of the select vestry is co-extensive with that which, before this act of Parliament, was in the parishioners generally. It is optional with the parishioners, whether they will or will not proceed upon the old law, or upon the provisions of this statute, by the appointment of a select vestry; but if they pursue the latter course, they delegate their authority to that body. With the policy of this provision we have nothing to do; but any informality or objection which may arise upon the contract itself, may be corrected by the magistrates by whom, to be valid, it must be allowed. The allowance by the magistrates is a question of fact, upon which an issue is joined; and if the plaintiffs fail at the trial to establish that fact, it will be fatal to their action.-Alexander, L. C. B. I can see no construction of which this statute is capable, other than that which is put upon it by my learned brother. What can be its object, if it be not to confer upon the select vestry the power of arranging and managing the concerns of the poor, in the same manner as before the statute the body of the parishioners at large were authorized to do?—Garrow, B., and Vaughan, B., concurred. Judgment for the plaintiffs. P. 214. "Whereas divers local acts of parliament have lately passed containing enactments relative to the maintenance and regulation of the poor, varying the general law with respect to particular districts, parishes, townships or hamlets; and it is expedient that some of such enactments should be repealed; Be it therefore enacted, That all enactments and provisions, contained in any act or acts of parliament since the commencement of the reign of his Majesty King George the First, whereby any poor person or persons, other than such as shall actually apply for and receive parochial relief, or are compelled or made compellable to go or remain in any house of industry or workhouse; or whereby any poor person or persons may be detained or kept in any house of industry or workhouse, at the discretion of the governors or directors thereof, or of the churchwardens or overseers of the poor of any district, parish, township or hamlet, after such persons are capable of maintaining themselves; or whereby any poor person or persons may be compelled to remain in any house of industry or workhouse, until the charges and expences to which any district, parish, township or hamlet, may have been put or become liable or chargeable for the maintenance or support of such poor person or persons, or any of his or her family, shall be repaid or reimbursed or satisfied by the earnings or labour of such poor person or persons; or whereby any poor child or children whomsoever is or are rendered liable to be apprenticed to any governor, director, or master of any such house of industry or workhouse; or whereby any parish, township or hamlet, at a greater distance than ten miles from such house of industry or workhouse, shall hereafter be empowered or authorized to become contributors to, or to take the benefit of such house of industry or workhouse; or whereby any directors, governors, guardians or masters of any such house of industry or workhouse, are authorized or empowered to hire out any poor person or persons of full age, or to contract or agree with any person or persons to have and take the profit of the labour of such poor person or persons; shall be wholly and severally, and the same are hereby wholly and severally, repealed." Sect. 2. "That from and after the passing of this act, it shall not be lawful for any governor, director, guardian or master, of any house of industry or workhouse, on any pretence, to chain or confine by chains or manacles, any poor person of sane mind." P. 234.-In a case of immediate and urgent necessity, an overseer must find immediate relief, or may be indicted; but in ordinary cases he is not indictable unless there has been a justices' order to afford relief. Rex v. Meredith, and Rex v. Booth, Russ v. Ry, Crown Cases, 46, 48, where see forms of indictment. On the other hand it is said, that an indictment lies against an overseer for relieving a pauper, when there was no necessity. Tawney's case, M.S. 16 Vin. Ab. 415. P. 273. See further Walsh v. Tissell, 6 Bingh. 163; Hill v. Eastoff, 6 Bingh. 176; Rex v. Londonthorpe, and Rex v. Otley, as to freehold. P. 527, 539.-But see in Rex v. The Inhabitants of Otley, Suffolk, 1 Bar. § Adol. 161; where a pauper, upon appeal against an order of two jusices, whereby Samuel Stammers and his four children were removed from the parish of St. Mary, Lambeth, in the county of Surrey, to the parish of Otley, in the county of Suffolk, the sessions confirmed the order, subject to the opinion of this Court on the following case :-Samuel Stammers, the pauper, rented of James Bedwell, of Ipswich, carpenter, in the appellant parish, a windmill called a smock mill, a brick-built cottage, and a small garden, at the rent and was rated to and paid the rates for the re lief of the poor. The cottage and garden, with the mill, were toge annual value of 10, but exclusive of the mill, they were not of value. The mill was of wood, and had a foundation that annual of brick; but the wood-work was not inserted in the brick foundation, but rested upon it by its own weight alone. No part of the machinery of the mill of 30l. per annum, during the space of six years, and three quarters of another year, ending Midsummer, 1827; and during the whole of that time held, occupied, and actually paid for the same the said sum of 301. per annum, and was rated to and paid several rates for the relief of the poor of the parish of Otley in respect of the cottage and garden, and also of the of more than the mill, at the estimated value of 61. per annum. The cottage and garden, with the mill, are together more than the annual value of 101., but the cottage and garden, exclusively of the mill, are not of that annual value. The mill is of a circular form, and of wood having a foundation of brick, twelve inches high from the ground, in which the wood-work is not inserted, but rests upon it by its own weight alone. No part of the machinery of the mill touches the ground or any part of the foundation; the whole is confined to the wooden part of it, which has two floors; but on the ground within the brick foundation, planks are laid down so as to form a flooring, and the mill would work as well upon the ground as upon the brick foundation. Some time after the erection of the mill, the tenant placed mortar on the inside and outside of the cill or bottom part of the wood-work of the mill, for the purpose of excluding the weather, mortar so placed not acting as a cement between wood and brick-work; and he also fixed posts in the ground, which sloping towards the mill, supported steps by which the mill was entered. The question for the opinion of the Court was, Whether the mill in question was a tenement by the renting of which the pauper could acquire a settlement in Otley Bayley, J. The question is, Whether the mill be parcel of a tenement? To be so, it must be part and parcel of the freehold. Now, it is not parcel of the freehold unless it be affixed to it, or to something previously connected with it. Here the mill was not affixed to the land, but merely rested on a foundation of brick. The sessions have found that if it had stood upon the ground, it would have worked as well. If it had, the only difference would have been, that it probably would have rotted. This is analogous to the case of a barn set upon pillars; and that is nothing more than a chattel. The windmill in this case would clearly have gone to the executor, and not to the heir.—Littledale, J. This is precisely within the case of Rez v. The Inhabitants of Londonthorpe. It is attempted to be distinguished, because the tenant in that case had permission from the landlord to put up the mill, and it was treated by both as a chattel; but that circumstance can make no difference. Suppose there were two mills in two distinct townships, and one of the townships treated the mill as a tenement, and the other as a mere chattel. That would make no difference. It must depend upon the nature of the building, and not upon the mode of treating it, whether it be a tenement or not.-Parke, J. I am of the same opinion. To constitute a tenement, it is necessary that the structure should be affixed to the soil, or to something annexed to the soil. Here the windmill rested merely upon the brick foundation, without being annexed to it by cement. Order of sessions quashed. it, was not parcel of a tenement, and, conse quently, that the pauper gained no settlement. By the 6 Geo. 4, P. 579. This case of Rex v. Ditcheat, 9 B. & C. 176, was confirmed in Rex v. the Inhabitants of Great Bentley, 10 B. & C. 520. Upon appeal against an order of two justices, whereby J. Peeling, his wife and children, were removed from Little Clacton to Great Bentley, both in the county of Essex, the sessions confirmed the order, subject to the opinion of court of K.B. on the following case:-J.Peeling, the pauper, hired a tenement, consisting of a separate and distinct dwelling-house, and a pasture field of two acres, in the respondent parish of Little Clacton, the hiring to commence on December 25th, 1826. He engaged to pay for this tenement the rent of 137. 10s. a year, for the term of two years; but in the latter part of Marck, or the beginning of April, 1827, the pauper sold the grass in the field, from that time till New Michaelmas, to John Townsend, for ten guineas, to be mowed or fed by him, as he pleased, and during that time he discontinued to turn his donkey and cow into the field as he had before done, as he did not at the sum of 107. consider that he could feed the grass after he had sold it to Townsend; and having a quantity of clover, which he wished to stack in the field, he asked Townsend's leave to stack it there; and having obtained that leave, abated a year at the least, for the term of one whole year; nor |