CASE of WOODFORD and LILBURN. 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 purchaser of the wife's eftate ought to maintain the children, and a husband is a purchafer of the wite's fubftance. The inftant a wife marries fhe lofes every thing fhe had, for her effects are inftantly vefted in her husband, and the act could never intend to charge her when fhe has nothing. For the words are, "being ofability," which exprefs the very contrary. There is no difference, whether the wife conveys away her fubstance 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 other" 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 refpect 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 respect of any eftate which he had with his wife. A bufband is not bound to maintain his 412. Tubb v. Harrifon, 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 arisen 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. Harrifon, and one John Perrin, her infant fon by a former hub ind, at her request. On the trial of this caufe before LORD KENYON, at Guildball, it was agreed that the plaintiffs fhould take a verdic for 150; and that it fhould 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 where on the action was brought, and whereby the defendants cove nanted TUBE V. HARRISON, nanted to pay all the debts contracted by Sarah Harrifon 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 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 confider of the point; and on a fubfequent day,---LORD KENYON, Chief Justice, faid, that he had seen 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) thip alfo ob. when 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 husband 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 must (6) And so it be difallowed. fame cafe in Fort. 303. Ante, pl. 408. name of that appears by the report of the (c) The order of maintenance in R. v.. . Benoire. 3. Lord Raym. 1454. ante, pl. 409. was also quashed on the authority of R. v. Munday. V. Penalty of difobedience, maintenance indictable. 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 order of the general quarter feffions for the county of Staf- see 42. 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 of the parish of Waterfal for the time being, the fum of two fhillings for the "relief and maintenance of his faid grandchild James 66 (d) The order recited the death of the father of thefe children; their being deftitute of fubfiftence; the complaint of the parish; the ability of the grandfather to maintain them; Y 4 and other proper foundations for fuch "Robinson REX V. ROBINSON. 66 "Robinson, 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 regarding 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 James Robinfon, or the like fum of 2s. for the "relief and maintenance of faid Peter Robinson, or .any 66 part of either of the faid fums; nor hath the faid Ro"bert Robinfon at any time or times, from or fince the "date of the faid order, relieved, maintained, or provided "for them the faid James Robinfon or Peter Robinfon, or "either of them, according to the law. But he the faid "Robert Robinfon, upon the 21st day of January, and con"tinually afterwards, until the day of the taking the 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 66 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, "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"rish 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 afpecific remedy against fuch new offence (not antecedently unlawful) by a particular fanction, and particular method (b) Cro. Jac. of proceeding, that particular method of proceeding must be purfued, and no other; and this is the refolution in Cafile's Cafe." (b) And where the offence was antecedently 643. 46 (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 arreit of judgment may be made on the Crown fide at any time before fentence pronounced. punish REX V. ROBINSON. 2. 163. 45. punishable by a common-law proceeding, and a ftatute proicribes a particular remedy by a fummary proceeding, there either method may be purfued, and the profecutor is at liberty to proceed either at common law, or in the method prefcribed by the ftatute; because there the fanction is cu- (a) 1. Salk. 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. Gea. 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 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 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 refuses to receive the pauper; fo 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 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. II. On the other hand it was faid, that notwithstanding the remedy given by this last-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. So in the prefent cafe, a remedy exifted before the ftatute Boyal, 2. Burr. 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 legiflature 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 fhould be, and there actually are, two remedies in the prefent Rex v. prefent cafe: one, to proceed by way of indi&tment, for dif ROBINSON. obeying the order where the weekly payment is neglected or refused to be made; the other, to diftrain for the 20s. penalty after the expiration of the month. The former method has been taken in the prefent cafe; and there is no doubt but that an indictment will lie for difobeying an order of feffions. But notwithstanding that here are two remedies given, yet it would be extremely oppreffive to take the remedy by indictment, if there are no circumstances which obftruct the procceding in the fhorter way of fummary remedy: this would indeed be very wrong and unreasonable, where the fummary remedy can be put in practice. But in fome cafes it may be impracticable to proceed in the fummary method by way of diftrefs; as if the party upon whom the order is made be gone out of county (which is faid to be the cafe here); in which cafe the penalty cannot be levied by diftrefs and fale, nor the offender committed by the juftices. And there may also be a difobedience to the order, even before the month is out; and the forfeiture is only 20s. for every month which they fhall fail: however, that would be too fevere, to indict for disobedience to the order with fuch very great hafte as not to wait till the month fhould be expired. By 43. Eliz. c. 2. f. 2. it is enacted, "That the old churchwardens and overfeers fhall account for the money in their hands, and fhall pay over the balance to the new churchwardens and overfeers upon pain of forfeiting 20s. for each default." a) In Eafter Yet there was a cafe (a), Rex v. Bill, where two overfeers Term, 20. Geo. were indicted for not obeying an order of feffions, whereby they were ordered to pay over the balance of their accounts to the new churchwardens and overfeers. In the cafe that has been mentioned, of Rex v. Boys (b), there was no other remedy but by way of indictment: it was Sayer, 108. 143. an indictment before the juftices of the liberty of St Aland ante, page ban's for not obeying an order of feffions, whereby the ander the name defendant was ordered to pay the cofts of an appeal against of Rex u. Byce. a poor's rate, which by 17.Geo. 2. c. 38. is to be recovered in 2. (6) Trinity, 27. Geo. 2. 88. pl. 327. 66 the fame manner as cofts upon an appeal against an order of removal; which by 8. &9. Will. 3. c. 30. are recoverable by diftrefs and fale (or commitment, where no diftrefs is to be had), where the party lives out of the jurifdiction (by warrant of fome juftice of peace for the place where the party inhabits); but if the party live within the jurifdiction (which Boys did), there is no other remedy but by way of indictment; and, on demurrer, judgment was given for the king. So that the cafe feems to be exactly parallel and in point with the prefent cafe: for that was a cafe where the fummary method could not bq |