Page images

Eliz. was

were strangers.-LORD HARDWICKE, Chief Justice. I am

Rex v. of opinion, that a father cannot be ordered to main

KIMPSON, tain liis son's wife, for the relation is not such as makes him liable to the charge: had the order been made upon the husband to relieve his wife, it would have been bind. ing on him, but cannot affect the husband's father. In Dunn's Case (a), an order was made on a fatherto maintain (a) Ante, pl. a fon's widow, and an exception was taken to it by my 406. . brother CHAPPLE, that by the death of the fon the relation the bore to the father ceased; but this order was quashed, because it did not appear that the father was of sufficient ability. In Rex v. Munduy (b), however, the Court (6) Ante, pl. were clearly of opinion, that a fon is not liable to maintain 407, and 4, 5, his wife's mother ; though in that case it was argued in favour of the order, that by the law of nature a father ought to maintain his son's wife; but there being no law in force to second the law of nature, the

43. made to carry it into execution: yet the Court then over-ruled it, and I am very well fatisfied with the authority of that cafe. For this exception, therefore, I think this order must be qualhed, and that the statute only extends to natural relations.—Page and PROBYN, Justices, agreed.-LEE, Justice. No direct opinion is given in the case in Keble; and in Munday's Cafe it appeared upon the special state of the order, that he had a good fortune with his wife, and therefore it was insisted that it was in nature of a debt due to the wife's mother : but the Court clearly held, notwithstanding this fortune which the son had with his wife, that the statute only extended to natural relations. The rule therefore for qualhing the order was made absolute.

411. Case of Woodford and Lilburn, 20. Geo. 2. MSS. The fatber-is. J. L. the father-in-law of the pauper was charged with law of a pauper

is not oblized her maintenance; and the justices gave this reason, be

to maintain cause he had a great fortune with his wife, the pauper’s him. mother. Sir JOHN STRANGE in support of the last or- See the case of der argued, that the word father, though prima facie to be Billinghey v. underitood of the natural father, yet had been car-Critchet, in ried so far as to take in the father-in-law; for where 1783, Brown's

Cases in Chan there is a substance with the mother, he takes it cum onere, and must maintain the child, who was supported with the substance before his marriage. Indeed, where there is no fubftance, it might be otherwise.-MR. HenLEY said, Here is no distinction between consanguinity and affinity; this is a debt of the wife's contracting, created by parliament, and in all cases the husband is subject to the wife's debts, and all her necessary contracts.-SIR RICHARD LLOYD, on the other Gde, infifted, that the


cery, 268.

Case of statute speaks only of those related in blood, on whom Woon FORD

nature laid an obligation. If the itatute is to be construed and LILEUEN.

to take in father-in-law, &c. then it must be done in all cases, whether the father-in-law receives any fortune or not with his wife. Upon this principle it might as well be infifted, that a purchaser of the wife's estate ought to maintain the children, and a husband is a purchaser of the wife's fubftance. The instant a wife marries the lofes every thing she had, for her effects are instantly vested in her husband, and the act could never intend to charge her when she has nothing. For the words are, "being of ability,” which express the very contrary. There is no difference, whether the wife conveys away her substance by deed of gift or by act of law upon her marriage.

- THE COURT. It was determined upon this act in Rex Ante, page 323. v. Munday, that the words “ father and mother” meant

such as were so in blood, and that even these relations are not chargeable in all instances, but that they must be such as are of sufficient ability. But this is a cafe where the mother is not of sufficient ability, being married at the time of the demand ; and this demand is not a charge upon the cftate, but upon the person in respect of the estate ; and if they are not of ability at the time when the demand arises, they are not chargeable by this act. The present cafe is exactly the same with that of Rex v. Munday; so that we are of opinion, that the father-in-law is not liable in

respect of any estate which he had with his wife. A busband is 412. Tubb v. Harrison, Mich. Term, 31. Geo. 3. 4. Term mat bound to

Rep. 118.–This was an action of covenant ; in which mintain his

the defendants, who were father and son, after reciting wife's obiid by that differences had ariten between the son and his wife, a former hur. band, and that they had agreed to live feparate, covenanted to

the plaintiffs to pay the wife an annuity of gol. a year, and to pay all the debts contracted by her which her bufband was by law liable to pay. The breaches afsigned were

, (amongst others), that the wife iad then contracted a debt of 56!, 16s. gd. to 7. Brighton, for neceísary board and lodging, and other necessaries, and for money paid and laid out for necessaries for Mrs. Harrison, and one John Peirin, her infant fon by a former husband, at her request. On the trial of this cause before LORD KENYON, at Guildball, it was agreed that the plaintiffs should take a verdiet for 150l. ; and that it should be referred to an arbitrator to take an account of the particulars of the several demands, so that the same might be stated to the Court, subject to their opinion and direction on the construction of the covenant in the deed of feparation whereon the action was brought, and whereby the defendants cove


nanted to pay all the debts contracted by Sarah Harrison TUBB • the wife which her husband was by law liable to pay.

HARRISON. The account being now delivered in, it appeared that se. veral of the items were for the maintenance of her infant son by a former husband. This matter was shortly spoken to at the bar; and the case of Rex v. Munden, as reported in Strange, was relied on ; where it was held, that a husband was not bound to inaintain his wife's mother. But it not appearing from the statement of that case, either in Strange or in Burn, whether or not the wife were alive at the time, the Court took time to consider of the point; and on a subsequent day,---Lord KENYON, Chief Justice, said, that he had seen a copy of the order in Rex v. Munday (a), tai en from the records of the Court, (a) His Lord." by which it clearly appeared, that the wife was alive (6) Tip also ob. when the order was made. The Court in that case re

served, that the versed the order of maintenance, on the ground that the Atatute of 43. Eliz.c. 2. f. 7. only extends to natural rela- day, and nos tions. Therefore, on the authority of that case (c), we are Níunden, as re. of opinion, that the husband is not liable for the expences ported in of maintaining the wife's child by the former husband;

Strange, and consequently that those articles in the account muft (6) And so it be difallowed.

appears by the

report of the fame case in Fort. 303. Ante, pl. 408. (c) The order of maintenance in R. v. Benoire,

Lord Raym. 1454. ante, pl. 409. was also quashed on the authority of R. Y. Munday:

name of that case was Mun.

V. Penalty of disobedience,



413. Rex v. Robinson, Trinity, 32. Geo. 2. Burr. 799.- Disobedience This was a motion in arreft of judgment upon AN IN- to an order of DICTMENT against the defendant, for refusing to obey an maintenance

indictable. order of the general quarter sessions for the county of Staf- Elis, ford, made upon him for his keeping and maintaining c. 2. 1. . Fames and Peter Robinson, his two infant grand-children, in which the breach was laid according to 43. Eliz. 6. 2 1.7 It came on no less than four times before the Court.' Thę indictment RECITES lhe order of seffions made on the 11th of January 1757, directing (d), “ that “the defendant Robert Robinson should, from the date “hereof, weekly and every week, pay or cause to be paid " unto the overseer of the poor of the parish of Warere. " fal for the time being, the sum of two shillings for the " relief and maintenance of his faid grandchild James

(1) The order recited the death of and other proper foundations for such the father of these children ; their an order ; and that the facts were by being deftitute of fubfiftence ; the proper evidence made to appear to complaint of the parish ; the ability the justices at feffion.–Nore by Sir the grandfather to maintain them; James Burtow.

« Rebinfora

Y 4


Robinson, and the like sum of two shillings for the re“ lief and maintenance of his said grandchild Peter Robinson, and to continue such respective payments « until further order.” With this order the defendant was duly and legally served on the 21st of the same January. And the CHARGE is, “ That he, not regard

ing the said order, &c. did not, weekly and every week, "! or otherwise howsoever, pay or cause to be paid unto " the overseer of the poor of the said parish of Waterfal, “ either the said sum of 25. for the relief and maintenance " of said James Robinson, or the like sum of 2s. for the “ relief and maintenance of said Peter Robinson, or any

part of either of the said sums; nor hath the said Robert Robinson at any time or tinies, from or since the “ date of the said order, relieved, maintained, or provided “ for them the said James Robinson or Peter Robinson, or “either of them, according to the law. But he the said Robert Robinson, upon the 21st day of January, and con“tinually afterwards, until the day of the taking the

inquisition, unlawfully, wilfully, obstinately, and contemptuously did, and yet doth neglect and refufe to pay, or cause to be paid unto the said overfeer of the

poor of the parish of Waterfal for the time being, weekly and every week from the date of the said order, • the said several and respective sums abovementioned, “contrary to the purport and direction of the said or“ der, and in manifest breach and contempt of the same, " to the great damage of the inhabitants of the said pa“ rifh of Waterfal, and the evil and pernicious example of “ all others in the like case offending. (a)-LORD MANSFIELD now delivered his opinion. The objection to this indictment is, “That the offence is not indictable, because the act of parliament has pointed out a particular punishment, and a specific method of recovering the penalty which it inflicts." The rule is certain, " That when a statute creates a new offence, by prohibiting and making unlawfulany thing which was lawful before, and appoints a specific remedy against such new offence (not antecedently

unlawful) by a particular sanction, and particular method (6) Cro. Jac. of proceeding, that particular method of proceeding must


be pursued, and no other; and this is the resolution in Cofile's Cafe.(6) And where the offence was antecedently

(a) The indictinent was found on the 3d of the next May ; and the at a quarter sessions holden the 12th Court then held (notwithAtanding July, 31. Geo. 2.

The moti' n in the case in 1. Salk.78), That a motion arrest of judgment was made on Mon. in arrest of judgment may be made day the sile of February 1759. There on the Crown lide at any time before being a doubt, whe: her the motion sentence pronounced. was in time, the secondary certified


panishable by a common-law proceeding, and a statute pre- Rex v. icribes a particular remedy by a summary proceeding, there ROBINSON, 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 fanction is cu- (m) 1, Salk. 45 mulative, and does not exclude the common-law punishment. The case of Stephens v. Watson (a) was a resolution upon these principles : there the keeping an alehouse without license was held to be not indictable, because it was no offence at common law, and the statute which makes it an offence has made it punishable in another manner. There was a case in this court of Rexv, Davis (6) (b) Mich. in arrest of judgment upon an indictment against the Term, 28. Geo. defendant, overseer of the poor of the parish of St. Peter 2. Sayer's Rep,

163. ad Vincula, within the liberty of the towER OF LONDON, for refusing to receive and provide for Hannah Gothridge, a pauper removed to that parish by an order of two juftices, made by virtue of 13. & 14. Car. 2. C. 12. by which act the justices are impowered to remove a pauper to the place of his legal settlement. But there is no provision by that act to punish the officer, in case he refuses to receive the pauper ; so that the only remedy was at common law to indict him. Afterwards by 3. & 4. Will. & Mary, c. 11. it was enacted, that “ if any officer refuse to \ receive a person removed by an order of two justices, he "Thall forfeit 5l. to be recovered in a summary way.” It was objected, That this was a matter not indićtable, because it was a new offence created, and a particular method appointed by the 3. & 4. Will.& Mary, c. 11. On the other hand it was said, that notwithstanding the remedy given by this last-mentioned act, the common-law remedy by indi&tment remains, and the officer of the poor may be proceeded against either way. The Court held the offence to be indictable, and discharged the rule to fhew cause why the judgment should not be arrested; for they held the offence to have been indictable after the act of 13. & 14. Car. 2. c. 12. and consequently not a new offence originally created by the 3. & 4. Will. & Mary, c. 11. (c) (c) See Rex ve So in the present case, a remedy existed before the statute Boyal, 2. Bura of 43. Eliz. c. 2.; for disobedience to an order of sessions, 832. is an offence indictable at common law. Here the relief is to be assessed and directed by order of sessions, and a particular proceeding in a summary way is prescribed by the act, as a particular fanction and method of punishment in case of failure. But it is to be presumed, that the legislature then knew and confidered that disobedience to an order of feffions was an offence indictable at common law; so that they must have intended that there hould be, and there actually are, two remedies in the


[ocr errors]
« PreviousContinue »