Rex v. "the faid John Fearnley hath not, at any time whatfoever, FEARNLEY. hitherto been otherwife ordered, according to law, to "forbear the faid allowance, contrary to the faid office " and duty, &c."-FEARNLEY, in fupport of the de- murrer. ift, Every caption of an indictment mult shew that it was taken before a court having a competent ju(1) 2. Hawk, rifdi&tion (a). The caption of this indictment ftates, P. C. 253. that the feffions were held on Tuesday the 4th of October, in the 25th year of the reign, &c. and then it ftates, that -the fame feffions were adjourned till Thursday the 6th day of July aforefaid; therefore the court, before which this indictment was found, was held without an adjournment, and had not a competent jurifdiction. Another objection was taken, That it appeared that the order of justices was made on the 11th of September, and on the fame day it was fhewn and delivered to the defendant; but the indictment did not ftate that the money was demanded either before or after it was due. As the refufal to pay conftitutes the effence of the charge, a demand and refufal ought to have been ftated. Befides, the money was ordered to be paid weekly, and every week; therefore the defendant could not have been guilty of any disobedience before the expiration of the first week: but it is not averted that the woman was alive at the end of the week; and he cited The King v. Morehouse, Tr. 25. Geo. 3. B. R. (a) -LAW, contra. This being a demurrer to an indictment, no advantage can be taken of any want of form in the coption. But if the Court fhould be of opinion, that in this ftage of the profecution any fuch objection may be taken, the prefent one is not well founded, becaufe enough appears on the caption itfelf to fhew that the feffions were adjourned till Thursday the 6th day of October. For though in the former part of it the word " July" is erroneously inferted, yet immediately afterwards it is stated, "that on the faid Thurfday the 6th day of October afore (a) This was an indictment for difobeying an order of two juftices to pay one fhilling and fix pence weekly towards the maintenance of Sarab Firth and her baftard child, delivered to the defendant, churchwarden of Checkbeaton. MR. FEARNLEY Moved to quash the in- they pleafe, and he cited Rex v. Woodfterton, ante, page 356.—MR. LAW, on the other fide, contended, that the overfeer could only attend to the directory part of this order; and has no concern as to the form of it.-LORD MANSFIELD faid, that the Court would not, on motion, go into mice and fubtle objections of form; and left the parties, if they thought the objection substantial, to demur.-The Rule was accordingly discharged. Editor's MSS, REX V. "faid, in the year aforefaid, the fame general quarter"feffions of the peace is holden by the adjournment afore. FEARNLE. "faid."-But THE COURT were of opinion, that this was a good objection, becaufe by the caption of the indictment it appeared that the court of quarter-feffions had no jurifdiction. Upon a demurrer to an indictment, the Court muft look to the whole record, to fee whether they are warranted in giving judgment on it; and therefore it is open to objections as well to the jurifdiction of the court, where the indictment is found, as to the fubject matter of the indictment. On the other point the Court were of cpinion, that the fum which was ordered to be paid weekly, was due at the beginning of the week; but, as to whether a fufficient demand was ftated to have been made in this cafe, they gave no opinion.-Judgment for the defendant. a parish, and do it without 465. Hays v. Bryant, Trinity, 29. Geo. 3. H. Black. Where a baftard Rep. C. B. 253.-Debt on bond dated January 16, 1782, child is born in in the penalty of fifty pounds, brought by the furviving te parents nechurchwarden and overfeer of the poor of the parish of gleet to provide Ridgwell, in Effex. After oyer of the bond and condition, neceffaries for its which was to indemnify the churchwardens and over- fuftenance, the feers of the poor, and the inhabitants and parishioners of Parish-officers Ridgwell, against the charges which fhould arife or be are obliged to impofed upon them, on account of the maintenance and an order of jufbringing up of fuch child or children as one Elizabeth tices for that Winch then went with, and fhould be delivered of, the purpose. defendant pleaded, 1st, Non eft factum. 2dly. Non damnificati. Replication, iffue on the firft plea. To the fecond, that Elizabeth Winch was delivered of two children, and that neither the defendant nor any perfon in his behalf provided any food or nourishment for them; by reafon whereof the inhabitants, &c. of Ridgwell, left the children fhould perifh for want of neceffary food and nourishment, were forced and obliged to expend, and did neceffarily expend 31. in providing, &c. and fo were damnificd, &c. Rejoinder, that no juftice's order was ever made upon the inhabitants, &c. of Ridgwell, for the maintenance and bringing up of the faid children, or for the payment or allowance of the money, &c.; and fo if they did expend, &c. it was of their own voluntary act and wrong; and if they were damnified, it was of their own act and wrong, &c. Sur-rejoinder, that they were damnified on account of the maintenance and bringing up of the faid children, within the true intent and meaning of the condition of the bond, &c. and not by their own voluntary act and wrong: on which iffue was joined. It was proved at the trial, that the defendant Bb 2 had HAYS V. BRYANT. had agreed to pay 2s. 6d. per week for the maintenance of the children, and in fact paid it up to Michaelmas 1787, and then refused to pay any farther, alledging that the fum was too great. The counfel for the defendant objected, that the plaintiffs or parishioners were not obliged to maintain the children, without a juftice's order for that purpose. But MR. JUSTICE WILSON, who tried the caufe, over-ruled the objection, and a verdict was found for the plaintiffs. A rule having been granted to fhew caufe why the verdict fhould not be fet afide, and a nonfuit entered, BOND, Serjeant, repeated the objection which he made at the trial; and cited the cafe of Dougl. and Simpson v. Johnfon.-COCKELL, Serjeant, was going to fhew caufe, but was ftopped by THE COURT, who held clearly, that an order of juftices was not neceffary to make the officers of the parish liable to do what they were otherwife under a legal obligation of doing, namely, to provide neceffaries for the children; and therefore difcharged the rule. 7 poft. ch. 8. §. 2. Where an order other of his family) is obliged to go house, under 466. Rex v. Haigh and Another, Eafter Term, 30. Geo. 3. of relief is made 3.Term Rep. 637.-The defendants (the churchwarden and to a poor perfon, overfeer of Shelf, in the Wefl-Riding of York) were indicted fuch perfon only for difobeying an order of a juftice, for the payment of a (and not any weekly fum to Mary Gray for the maintenance of her baftard child. At the trial before BULLER, Justice, at the laft York affizes, it appeared that the mother applied into the work for relief for her child only; and the question was, Whether the defendants were bound to obey the order, as the mother of the child refused to go into the workhoufe (a)? A verdict was taken for the profecutor, fubject however to be fet afide, and to have a verdict of acquittal entered, in cafe the Court fhould be of opinion, that under thefe circumstances the defendants were not bound to obey the order.-WooD and J. P. HEYWOOD, for the profecutor, relied on the opinions of WILLES and BULLER, Juftices, in Kex v. North Shielas (b), as decifive. 9. Geo. 1. c. 7. f. 4. (a) See the words of the ftatute, ante, page 352. pl. 446. (b) Cald. 68. Ante, p. 363. pl. 463. (c) 3. Burn's Jun. 617. Dougl. 331. Ante, p. 358. pl. 461. CHAMBRE and WICKHAM, for the defendants, mentioned the cafe of Rex v. Carlisle (c), where all the Judges were of opinion, that the mother's refufal to go into the workhoufe juftified the parith-officers in refufing payment of the fum ordered. And even if this question had not been determined, the inconveniences attending a contrary decifion ought to be confidered; for in fuch a cafe the parents themselves would be idle, while the children were maintained at the expence of the parifh. It was the object of the legislature throughout the whole fyftem of the poor laws to give authority authority to the parifh-officers over the whole of a fa- REX v. HAIGH mily, when any of them are unable to fupport them- and ANOTHER. felves; and under the words "poor perfons" are comprehended all the conftituent and dependent parts of the family; for when relief is adminiftered to a child, it is in effect given to the parent. In Rex v. St. Mary Westport (a), (a) 3.Term Rep. where a queftion arofe, Whether the whole of a certifi- 48. See poft. cated family might be removed when one of them afked title "Certifirelief? LORD KENYON faid, that the word "family" cate." was explained in another claufe of the fame act (b) to (b) 8. & 9. W. comprehend the wife and children of fuch perfon co- 3. c. 30. 1. 2. "habiting in the fame houfe."-LORD KENYON, Chief Ante, p. 350. Juftice. The only queftion is, For whom was the relief Pl. 442, afked for fuch perfon only is, according to the terms of this act of parliament, to be fent to the workhouse. It is ftated, that the child only wanted relief; the application was indeed made by the mother, but it was not on her own account, but for her child only, who was of too tender an age to apply herself. This is therefore very diftinguishable from the cafe of Rex v. Carlisle, where the relief was afked both for the parent and the child. It would be extremely hard, and contrary to the fpirit and words of this act of parliament, if, when all the children of a family (except one) were capable of fupporting themfelves, and that one were unable either from the want of reafon or of the ufe of its limbs to maintain itself, and were under the neceffity of receiving relief, the whole family were to be fent to the workhoufe. Such a law would not only be repugnant to all ideas of mercy and humanity, but would alfo be prejudicial to the intereft of the parish, who would in fome meafure be deprived of the benefit of the labour of fuch of the family as were able to work; for they could earn much more out of the workhoufe than in it.-PER CURIAM. Judgment for the profecutor. bles the church 467. Rex v. Beefton, Eafter Term, 30. Geo. 3. 3. Term Under the Rep. 592.-This was a rule calling on the defendant, one 9. Geo. 1. c. 7. of the overfeers of Drayton in Hales, Salop, to fhew caufef 4. which ena why a mandamus fhould not iffue, commanding him to wardens and pay to William Atherton the weekly fum of 61. 6s. 2d. until overfeers, with fuch payments fhould amount to 301. The parishioners the confent of or inhabitants affembled in December 1789, in purfuance the major part of of the usual and public notice for that purpofe given by to contract for an order, confented and approved of the churchwardens the providing for the poor, it the parishioners, is not neceffary that all the churchwardens and overfeers fhould concur; the contract of a majority of them will bind the rest. Bb3 and REX v. BEESTON. (a) See the words of the 9. Geo. 1. c. ante, P. 352. pl. 445. 7. and overfeers, or the major part of them, entering into a contract with 'illiam Athe: ton for keeping, maintaining, and employing the poor of that parith; in confequence of which the three churchwardens and two of the overfeers did contract with Atherton for that purpofe; but the defendant, who was one of the overfeers, refused to join and the queftion was, Whether it was neceffary that all the churchwardens and overfeers fhould concur in making this contract (a)? or, Whether the majority of them did not bind the left?-ERSKINE and CALDECOTT fhewed caufe againft this rule; infifting on the general principle, that whenever a power to do a particular act is given to feveral perfons, they muft all concur in executing it, unless they be fpecially empowered to act feverally as well as jointly.-LEYCESTER and LANE, contra, were ftopped by the Court.-LORD KENYON, Chief Justice. The conftruction contended for muft have prevailed, if the legiflature had in exprefs terms required it; but as it would be attended with manifeft inconvenience, the argument ab inconvenienti ought to have great weight in this cafe, where the legislature has not fo required it. A contract has been entered into in which the parifh at large is concerned, and which the act of parliament has enabled the parifh-officers, with the concurrence of the parish, to enter into and the queftion is, Whether one obftinate man, in oppofition to all the reft of the parish, in an act in which they are more interested than he is, fhall be able to defeat their purpose? I do not mean to fay, that the churchwardens and overfeers are technically a corporation; but as far as concerns the regulation of the poor of the parish, they stand in pari ratione. And in the inftance of corporations the act of the majority binds the whole; fo much fo, that the Court will compel the perfon who has the cuftody of the corporate feal, to affix it to any act according to the vote of the majority, though against the confent of fuch perfon, as was done in the cafe of Wadham (b) Vide Rexv. College (b). However, I do not go on the ground of this Dr. Windham, fimilitude: but the foundation of my opinion is this, warden of Wad the ftat. 43. Eliz c 2. has directed that the general acts ham,Cowp-377 to be done by the churchwardens and overfeers refpecting Ante, p.343. the poor fhall be done by the majority of them (c); and I pl. 427. think that the fpirit of that ftatute pervades all the fubfequent as refpecting the government of the poor. The ftatute in queftion I confider as engrafted on the 43. Eliz. c.2.q alifying the particular act, but referring for the execution of it to the manner pointed out by that statute. Befides, in common understanding, what is required to be done by the churchwardens and overfeers is fatisfied by |