Robert. the defendants ought to be convicted or not?-JAMES REX . WINWALLACE, for the profecutor; THOMAS WALKER, for SHIP and GRUNWELL. the defendants.--CHAMBERS (a), for the profecutor, contended, that the doubt in this cafe could not arife from (a) Now Sir any error of procefs, was it as clear that an indictment lay for difobeying an order of feffions; that confequently it muft arife either from the circumftance of the order having been made by thofe who had no right to make it, or from fome defect in the mode of making it. That there are two fpecies of poor: the firft, thofe who are able to work; and fuch are to be fet to work, employed and maintained in the workhoufe: the fecond fpecies are thofe who are impotent, old, and unable to work; and fuch are to be maintained and not fent to the workhoufe. That the act (6) fays, "The parifh-officers thall main- (6) 9. Geo. 3. "tain and employ fuch as they fend to the workhoufe ;" c. 7. f. 4. confequently they fhall fend none to the workhoufe but fuch as they can employ: that this is a diftinction. founded in nature, and recognized by feveral acts of parliament; and if it be a true diftinétion, the defendants fhould have paid this poor woman the allowance according to the order; and her refufal to go into the workhoufe can be no objection: that if the allowance can be exacted, then as to the mode of it, that the juftices at the quarter-feffions have an original jurifdiction in this inftance, and not merely an appellate one, by the exprefs words of ftat. 3. & 4. Will & Mary; nor is there any appcal in this cafe: that at least the other fide muit thew an appellate, if they deny an original jurifdiction; as it is clear that they were meant to have cognizance of the matter. Now at the time of making this act no appeal lay to the feffions; nor did there, except in the cafe of fettlements, till the ftat. 17 Geo. 2. c. 38. f. 4. ; and the Court will confider how this queftion itood at the time the act was made, and not how it may ftand now by subfequent regulations. But it has been holden, that the ftat. 17. Geo. 2. does not extend to give an appeal in this cafe: and it has been very wifely fo holden, for of all · cafes this is the moft improper in which an appeal can lie; for the pauper might be flarved pending the appeal, and before the right could be determined.-DAVENPORT, for the defendants, infifted, that the juftices at feffions had no original jurifdiction to make any order; or if they had, that this order being made with reference to another order, that was not fet forth in the indictment, the indictment was bad.-CHAMBERS now faid, that he could fapport it as an original order for the future payment.DAVENPORT, I fall then object, that the order itfelf was SHIP and 66 REx v. WIN- was bad, as it was not alledged to have been made on oath, or upon application to the quarter-fellions.-LORD GRUNWELI MANSFIELD (ftopping DAVENPORT, who was proceeding to ftate the merits of the cafe). The previous queftion is, Whether this order, for difobedience of which the defendants are indicted, is a good and legal order upon the face of it? The objections to it are strong, and indeed it is impoffible to fupport it. Upon MR. CHAMBERS's own conceffion, which he is obliged to make, there is an end of the queftion. The feftions order all arrears of the weekly allowance to be paid: this order has a reference to a former order; which former order is not ftated and upon the fame ground that this part of the queftion relating to the arrears is given up, that part of the question relating to the growing payments must alfo be yielded. Taking this as an original order, the objections to it are numerous. By 9. Geo. 2. " No juf"tice can order relief for any poor perfon, until oath be "made that he has applied at fome public parish-meeting "and has been refufed; and the overfeers are to be fum"moned to fhew caufe." His lordship then recited the preamble of the act, for the purpofe of fhewing the mifchief and the remedy that was intended. He then obferved, that the mifchief and the remedy were both applicable to all juftices, either fingly or fitting collectively at the feffions; and though the act of parliament only mentions one justice, yet it must be understood of every number of juftices, having cognizance of the matter. This order then not being flated or found to have been made upon oath, is clearly bad; and there is no enforcing it, taking it even for granted that the juftices have an original jurifdiétion at the feffions. By thefe provifions in the act, the Court are bound, whatever opinion they might form upon the principal queftion meant to be fubmitted to them, Whether there is any legal authority vefted in the magiftracy of this country to make an order for the relief of poor perfons refusing to go into the parish poor-boufe? The putting of people into the workhoufe does not impofe upon them an obligation to work, if they are not qualified for labour. Every perfon in the workhoufe is not obliged to work. Suppofe a man is in a fever! Were the matter or keeper of the workhouse to exact labour from fuch a perion, he would be indictable for it, and I have had feveral indictments of that kind before me. It is of great importance to the system of the poor laws to have this point fettled.- MR. WAL(a) The cafe of LACE then mentioned a cafe fimilar to the prefent from Rex v. Carline, his own notes (a).-LORD MANSFIELD. I have fome reante, page 358. pl. 461. mote SHIP and GRUNWELL. mote memory of it; and the inclination of my opinion, Rex v. WINon the opening of the queftion, was according to the cafe. His lordship prefently added, that the note was certainly authentic that GOULD, Justice, had once holden the contrary; but that the bar might depend upon it, that all the judges of England, who had been confulted at Serjeants Inn, were of the opinion ftated in the note. -PER CURIAM. Judgment for the defendants. concurrent ju. rifdiction with hood in making against any fuch order. 463. Rex v. North Shields, Hilary, 20. Geo. 3. Cald. 68. The justices of -A juftice of the peace made an order upon the church- feffions have a wardens and overfeers of the township of North Shields, in the parish of Tynemouth, in the county of Northumber- a justice within land (upon the oath of Ann Irvin, the wife of Thomas the parish or of Irvin, a mariner, and then a prifoner in France, that the the neighbourwas very poor, impotent, and not able to work for the orders for the maintenance of her three children by her faid husband, to wit, relief of the James, aged fix, Mehetabel, aged three years, and Ann, poor, and nɔ aged fourteen months, and that she had applied to the appeal lies overfeers for relief for her faid three children, and was refufed), to pay the fum of two fhillings and fixpence weekly unto the faid Ann, the mother, for and towards the fupport of the faid three children, until fuch time as they fhould be otherwife ordered. The feflions, on appeal, confirm this order, and ftate the following cafe: That there was, at the time of ifluing the faid order, and now is, within the faid township, a poor-house, established according to the ftatute made in the 9th year of the reign of his late majefty king George the firft, into which the faid overfeers were and are willing to receive the faid Ann Irving, with her faid three children, and offered fo to do; and that the faid Ann Irving refused to go herself with her faid three children thereto: and it alfo appeared to this court, that the three children named in the faid order are of the ages therein refpectively mentioned; and that the faid Ann Irving hath one other child of the age of eight years, for which the did not feek relief; neither did the feek relief for herself, or is any relief ordered for her by the faid order and it alfo appeared to this court, that the faid Thomas Irving, the husband, is a mariner, and now a prifoner in France, and that the faid Ann Irving is unable to provide for her faid three children in the faid order named: and the faid three children, in the faid order named, are nurfe-children under the age of feven years, and in the opinion of this court ought not be feparated from their faid mother; neither in the opinion of this court is the faid mother, not fecking relief for herself, compellable to go into the SHIELDS. REX NORTH faid poor-houfe.-DUNNING fhewed caufe in fupport of thefe orders; and infifted, that as the mother had not here aíked relief for herself, this could not be confidered as the cafe of a perfon refusing to go into the parith workhoufe, under the provifions of fat. 9. Geo. 1. c. 7. f. 4. which were, "That in cafe any poor perfon fhall "refufe to be lodged, kept, or maintained in the parith "workhoufe, &c. fuch poor perfon fhall not be entitled "to ask or receive collection or relier from the church"wardens and overfiers of the poor of the parith." Had the order run in a different form, and ftated only the application of the children, then under age of nurture, and living with their mother, who was unable to fupport them, and had then directed the officers to pay a proper weekly fum for their fupport, this objection would not have been open. Can then the Court either in juftice or humanity put fo critical and rigid a conftruction upon fo beneficial a law, as to fay, because the mother, who ftruggles to fupport her own independence, and to prevent, on her own account, any trouble or expence to be thrown upon the parith, has applied for her children, and the relief is directed to pafs through her hands, that the falls within the letter of the law? That in the cafe of (a) M. 7.Geo. 3. (a) The King and Carlile, the relief applied for, received Burn's Juttice, and ordered, was for the mother as well as the children; vol. 3. p GIT. and being in part perfonal, made that cafe diftinguishable edit. 1785. Ante, page 358. from the prefent, and brought it within the ftatute.pl. 461. LEE and SCOTT, in fupport of the rule to quafh thefe orders, infilled, that the object and policy of this act was to prevent idlenefs, and to compel fuch perfons as derived a fupport from the parish to contribute by their labour to its benefit: that the conftruction contended for muft defeat this aim, and would enable any one to throw his whole family upon the parith, and contribute nothing bimfelf: that the fingle exception to this law was under fat. 19. Geo. 3. c. 72. f. 3. in favour of the families of fabititutes in the militia: that if parents are by law bound to fupport their children, to give relief to the child is to relieve the parent: that it this be then a benent to the mother derived from the parith, by the spirit of the law the falls within its provifions; and it is the argument on the other fide that refts upon the letter: that The King v. Carlile went upon the principle, that parents must contribute their own labour towards the uppert of their families; and was a determination in point by all the judges.--WILLES, Juftice, inclined to the diftinction taken at the bar between this cafe and that oi The King v. Carly; and faid, that the parish had be SHIELDS. nefit by the mother's continuing without relief, and fup- Rex. NORTH porting her eldest child; and that if a benefit was to be derived to part of her family from the parish, they were not therefore entitled to her labour and that of the whole: that all the afked was a fubfiftence for fuch of her children as were in a ftate of helpless infancy. Suppose the cafe of an accident or broken limb, muft the condition of relief in fuch cafe be, that the parent accompany the child? That the words of the act in the next claufe of the fame fection, which fpeaks of the poor in parithes that unite, are, "he, fhe, or they, fo refufing, &c. fhall "not be entitled to afk, demand, or receive, &c.” · I fee no reafon therefore why this muft neceffarily be confidered as a cafe within the act at all, or why it may not be taken as an excepted cafe. Nor can I admit the act as conclufive, unless the cafe of The King and Carlife is thought to have decided upon the point: but, as appears to me, the question there was not, Whether fuch relief could in any cafe be ordered? but, Whether the order made could be fupported ?-ASHHURST, Juice. One's wifhes are in favour of the order; but I doubt whether we are not bound by the act. A parent is obliged to maintain her family in the firft inftance: if the becomes unable, the may receive relief; but if the do, and the family at the time were living under the roof and protection of the mother, the relief muft be taken as extended to them all; and every poor-houfe has accommodations for children: if confidered otherwife, it would be attended with mifchievous confequences. Suppofe an idle artificer was to throw all his family upon the parish, and fay, "I'll only earn fufficient for nyfelf," how under the conftruction infifted upon is this milchief to be prevented? The object of the act was to make an ufeful and neceffary body of men uniformly induftrious.-- BULLER, Justice. I am not fatisfied that we are bound by the act, as it is faid to be expounded in The King v. Carlifle; but think that the ftatute, in its true conftruction, is confined to fuch poor perfons for whom the relief is ordered; and therefore, that the diftinction between that cafe and the prefent is well founded. The act profeffes to be made for the greater cafe of parishes in relief of "the poor." Now the very reverfe of this must be the cafe, if a parish is obliged to find accommodation for a numerous family, when an individual only of that family wants relief. The aft docs not exprefsly fay, that any one, except the individual who wants relief, is bound either to go into the poor-houfe or to work: and infants of the tender years ftated in this cafe are not capable of difcretion, |