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REX . KIMPSON,

426.

were ftrangers.-LORD HARDWICKE, Chief Juftice. I am
of opinion, that a father cannot be ordered to main-
tain his fon's wife, for the relation is not fuch as makes
him liable to the charge: had the order been made upon
the hufband to relieve his wife, it would have been bind-
ing on him, but cannot affect the husband's father. In.
Dunn's Cafe (a), an order was made on a father to maintain («) Ante, pl.
a fon's widow, and an exception was taken to it by my
brother CHAPPLE, that by the death of the fon the re-
lation the bore to the father ceafed; but this order was
quafhed, because it did not appear that the father was of suf-
ficient ability. In Rex v. Munday (b), however, the Court (b) Ante, pl.
were clearly of opinion, that a fon is not liable to maintain 407, and 48.
his wife's mother; though in that cafe it was argued in
favour of the order, that by the law of nature a father
ought to maintain his fon's wife; but there being no law
in force to fecond the law of nature, the 43. Eliz. was
made to carry it into execution: yet the Court then
over-ruled it, and I am very well fatisfied with the autho-
rity of that cafe. For this exception, therefore, I think
this order must be quafhed, and that the ftatute only ex-
tends to natural relations.-PAGE and PROBYN, Justices,
agreed.-LEE, Juftice. No direct opinion is given in the
cafe 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 infifted that it was in na-
ture of a debt due to the wife's mother: but the Court
clearly held, notwithstanding this fortune which the
fon had with his wife, that the ftatute only extended to
natural relations. The rule therefore for quafhing the or
der was made abfolute.

Cafes in Chan

411. Cafe of Woodford and Lilburn, 20. Geo. 2. MSS. The father-in7. L. the father-in-law of the pauper was charged with law of a pauper is not obliged her maintenance; and the justices gave this reafon, beto maintain cause he had a great fortune with his wife, the pauper's him. mother. SIR JOHN STRANGE in fupport of the last or- See the cafe of der argued, that the word father, though prima facie to be Billingsley v. understood of the natural father, yet had been car- Critchet, in ried fo far as to take in the father-in-law; for where 1783, Brown's there is a fubftance with the mother, he takes it cum onere, and must maintain the child, who was fupported with the substance before his marriage. Indeed, where there is no fubftance, it might be otherwife.-MR. HENLEY faid, Here is no diftinction between confanguinity and affinity; this is a debt of the wife's contracting, created by parliament, and in all cafes the hufband is fubject to the wife's debts, and all her neceffary contracts.-SIR RICHARD LLOYD, on the other side, infifted, that the

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ftatute

cery, 268.

CASE of WOODFORD

and LILBURN.

Ante, page 323.

A busband is mat bound to maintain his

ftatute fpeaks only of thofe related in blood, on whom nature laid an obligation. If the ftatute is to be conftrued to take in father-in-law, &c. then it must be done in all cafes, whether the father-in-law receives any fortune or not with his wife. Upon this principle it might as well be infifted, that a purchafer of the wife's eftate ought to maintain the children, and a husband is a purchafer of the wife's fubftance. The inftant a wife marries the lofes every thing fhe had, for her effects are inftantly vefted in her husband, and the act could never intend to charge her when the has nothing. For the words are, "being ofability," which exprefs the very contrary. There is no difference, whether the wife conveys away her fubftance by deed of gift or by act of law upon her marriage. -THE COURT. It was determined upon this act in Rex v. Munday, that the words "father and mother" meant fuch as were fo in blood, and that even thefe relations are not chargeable in all inftances, but that they must be fuch as are of fufficient ability. But this is a cafe where the mother is not of fufficient ability, being married at the time of the demand; and this demand is not a charge upon the cftate, but upon the perfon in respect of the eftate; and if they are not of ability at the time when the demand arifes, they are not chargeable by this act. The prefent cafe is exactly the fame with that of Rex v. Munday; fo that we are of opinion, that the father-in-law is not liable in refpect of any eftate which he had with his wife.

412. Tubb v. Harrison, Mich. Term, 31. Geo. 3. 4. Term Rep. 118.-This was an action of covenant; in which the defendants, who were father and fon, after reciting wife's child by that differences had arifen between the fon and his wife,

a former huf.

band.

and that they had agreed to live feparate, covenanted to the plaintiffs to pay the wife an annuity of 50l. a year, and to pay all the debts contracted by her which her bufband was by law liable to pay. The breaches affigned were, (amongst others), that the wife had then contracted a debt of 561, 16s. 9d. to J. Brighton, for neceffary board and lodging, and other neceffaries, and for money paid and laid out for neceffaries for Mrs. Harrison, and one John Perrin, her infant fon by a former husband, at her request. On the trial of this caufe before LORD KENYON, at Guildball, it was agreed that the plaintiffs fhould take a verdict for 15c.; and that it should be referred to an arbitrator to take an account of the particulars of the feveral demands, fo that the fame might be ftated to the Court, fubject to their opinion and direction on the conftruction of the covenant in the deed of feparation whereon the action was brought, and whereby the defendants covenanted

TUBB V. HARRISON.

nanted to pay all the debts contracted by Sarah Harrison the wife which her husband was by law liable to pay. The account being now delivered in, it appeared that feveral of the items were for the maintenance of her infant' fon by a former hufband. This matter was fhortly spoken to at the bar; and the cafe of Rex v. Munden, as reported in Strange, was relied on; where it was held, that a hufband was not bound to maintain his wife's mother. But it not appearing from the ftatement of that cafe, either in Strange or in Burn, whether or not the wife were alive at the time, the Court took time to confider of the point; and on a fubfequent day,---LORD KENYON, Chief Justice, faid, that he had feen a copy of the order in Rex v. Munday (a), taken from the records of the Court, (a) His Lord. by which it clearly appeared, that the wife was alive (b) hip alfo obwhen the order was made. The Court in that cafe re- ferved, that the verfed the order of maintenance, on the ground that the cafe was Munftatute of 43. Eliz. c. 2. f. 7. only extends to natural rela- day, and not tions. Therefore, on the authority of that cafe (c), we are Munden, as reof opinion, that the hufband is not liable for the expences ported in of maintaining the wife's child by the former husband; Strange, and confequently that thofe articles in the account muft (6) And so it be difallowed.

fame cafe in Fort. 303. Ante, pl. 408.
7. Lord Raym. 1454. ante, pl. 409. was

name of that

appears by the report of the (c) The order of maintenance in R. v. Benoire, alfo quashed on the authority of R. v. Munday.

V. Penalty of difobedience,

maintenance

413. Rex v. Robinson, Trinity, 32. Geo. 2. Burr. 799.— Difobedience This was a motion in arreft of judgment upon AN IN- to an order of DICTMENT against the defendant, for refufing to obey an indictable. order of the general quarter feffions for the county of Staf- See 43. Eliz. ford, made upon him for his keeping and maintaining c. 2. f. 7. James and Peter Robinson, his two infant grand-children, in which the breach was laid according to 43. Eliz. C. 2 f. 7. It came on no less than four times before the Court. The indictment RECITES the order of feffions made on the 11th of January 1757, directing (d)," that "the defendant Robert Robinson fhould, from the date "hereof, weekly and every week, pay or caufe to be paid "unto the overfeer of the poor af the parish of Water"fal for the time being, the fum of two fhillings for the relief and maintenance of his faid grandchild James

(d) The order recited the death of the father of these children; their being deftitute of fubfiftence; the complaint of the parish; the ability f the grandfather to maintain them;

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and other proper foundations for fuch
an order; and that the facts were by
proper evidence made to appear to
the juftices at feffion.-Note by Sir
James Burrow,

« Robinfona

REX V. ROBINSON.

(b) Cro. Jae. 643.

Robinfon, and the like fum of two fhillings for the re"lief and maintenance of his faid grandchild Peter Ro"binfon, and to continue fuch refpective payments "until further order." With this order the defendant was duly and legally ferved on the 21ft of the fame January. And THE CHARGE is, "That he, not regard"ing the faid order, &c. did not, weekly and every week, " or otherwife howfoever, pay or caufe to be paid unto "the overfeer of the poor of the faid parish of Waterfal, "either the faid fum of 2s. for the relief and maintenance "of faid fames Robinfon, or the like fum of 2s. for the "relief and maintenance of faid Peter Robinson, or any part of either of the faid fums; nor hath the faid Ro"bert Robinfon at any time or tines, from or fince the "date of the faid order, relieved, maintained, or provided "for them the faid James Robinfon or Peter Robinson, or "either of them, according to the law. But he the said "Robert Robinson, upon the 21ft day of January, and con"tinually afterwards, until the day of the taking the

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inquifition, unlawfully, wilfully, obftinately, and con"temptuously did, and yet doth neglect and refufe to pay, or caufe to be paid unto the faid overfeer of the poor of the parish of Waterfal for the time being, "weekly and every week from the date of the faid order, "the faid feveral and refpective fums abovementioned,

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contrary to the purport and direction of the faid or"der, and in manifeft breach and contempt of the fame, "to the great damage of the inhabitants of the faid pa"rifh of Waterfal, and the evil and pernicious example of "all others in the like cafe 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 ftatute creates a new offence, by prohibiting and making unlawful any thing which was lawful before, and appoints a fpecific remedy against fuch new offence (not antecedently unlawful) by a particular fanction, and particular method of proceeding, that particular method of proceeding must be purfued, and no other; and this is the refolution in Gafile's Cafe." (b) And where the offence was antecedently

(a) The indictment was found at a quarter feffions holden the 12th July, 31. Geo. 2. The motion in arreft of judgment was made on Monday the 5th of February 1759. There being a doubt, whether the motion was in time, the fecondary certified

on the 3d of the next May ; and the Court then held (notwithstanding the cafe in 1. Salk.78), That a motion in arreft of judgment may be made on the Crown fide at any time before fentence pronounced.

punish

REX V.

punishable by a common-law proceeding, and a statute preicribes a particular remedy by a fummary proceeding, there ROBINSON, either method may be purfued, and the profecutor is at liberty to proceed either at common law, or in the method

163.

prefcribed by the ftatute; because there the fanction is cu- (a) 1, Salk, 45 mulative, and does not exclude the common-law punishment. The cafe of Stephens v. Watfon (a) was a refolution 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 ftatute which makes it an offence has made it punithable in another manner. There was a cafe in this court of Rex v, Davis (b) (b) Mich. in arreft of judgment upon an indictment against the Term, 28. Geo. defendant, overfeer of the poor of the parish of St. Peter 2. Sayer's Rep. ad Vincula, within the liberty of THE TOWER OF LONDON, for refufing 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 juftices are impowered to remove a pauper to the place of his legal fettlement. But there is no provifion by that act to punish the officer, in cafe he refufes to receive the pauper; fo that the only remedy was at common law to indict him. Afterwards by 3. & 4. Will. & Mary, c. II. it was enacted, that " if any officer refuse to "receive a perfon removed by an order of two juftices, he "fhall forfeit 51. to be recovered in a fummary way." It was objected, That this was a matter not indictable, 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 faid, that notwithstanding the remedy given by this laft-mentioned act, the common-law remedy by indictment remains, and the officer of the poor may be proceeded against either way. The Court held the offence to be indictable, and difcharged the rule to fhew cause why the judgment fhould not be arrested; for they held the offence to have been indictable after the act of 13.

14. Car. 2. c. 12. and confequently not a new offence originally created by the 3. & 4. Will. & Mary, c. 11. (c) (c) See Rex v. So in the prefent cafe, a remedy exifted before the statute Boyal, 2. Burn. of 43. Eliz. c. 2.; for difobedience to an order of feffions, 832. is an offence indictable at common law. Here the relief is to be affeffed and directed by order of feffions, and a particular proceeding in a fummary way is prescribed by the act, as a particular fanction and method of punishment in cafe of failure. But it is to be prefumed, that the legislature then knew and confidered that disobedience to an order of feffions was an offence indictable at common law fo that they must have intended that there hould be, and there actually are, two remedies in the

prefont

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