May have retrospect. make it. (1) 2d, It must adjudge the party upon whom it is made to be of sufficient ability. (2) 3d, That the person to be relieved is actually chargeable to the parish. (3) 4th, That they are impotent (4), or unable to work (5); and this should be done as matter of adjudication, and not of recital. (6) 5th, It must direct and require the defendant to relieve the pauper; a mere recommendation is insufficient. (7) 6th, It must state for how long the maintenance is to continue. An indefinite order to pay 2s. 6d. a week is void. (8) But if it direct him to pay until the court shall order to the contrary, it seems sufficiently definite. (9) It is decided that this species of order may have a retrospect. An order that the grandfather should keep the grandchild, the father being living, and unable to do it (10), and also to pay so much more money for the time past, while he was chargeable, as well as for the time to come, was confirmed. (11) It seems to remain undecided, how far several relations, who are of sufficient ability, can be compelled, at the (1) Rex v. Woodford, 1 Bott, 371. Pl. 427., and held that, if the first order is bad on this account, it is not helped by a recital in the second, that the parties are then living within their jurisdiction. (2) Rex v. Hallifax, ib. 370. Pl. 422. (3) Rex v. Tripping, 19 Vin. 424., where a recital of the overseers' complaint to that effect held insufficient. See also Rex v. Jacob Mendez de Breta, 1 Ld. Raym. 699. Yet quære, whether it would not be sufficient to adjudge him likely to be chargeable? See Ld. Laym. 199. (4) Rex v. Litton, Sett. Poor, 111. (5) Rex v. Gulley, Fol. 47. (6) Rex v. Pennoyer, 1 Bott. 371. Pl. 426. See ante, 188., the form of an order of removal, and of an order of bastardy, post. (7) Rex v. Pennoyer, ante, (6). But without argument. (8) Ib. See the opinion of Lord Ellenborough C.J., Stable v. Dixon, 6 East, 171. (9) Jenkin's case, 2 Salk. 531., Rex v. Gulley, ante, (5). ance. (10) Quære, if this is not to be understood by paying a weekly allow. same time, to contribute to the pauper's support, by a joint, or by several orders. (1) But a relation of sufficient ability may be ordered to contribute to the support of several children in one family by the same order. (2) This order may be made as well on the application of On whose apthe indigent person as of the parish officers: and when a plication. sum is directed to be paid weekly, it is due at the com mencement of the week. (3) The 43 Eliz. enacts a specific penalty of 20s. a month Punishment, for disobedience to the order; which was, doubtless, 43 Eliz. more than sufficient to maintain a poor person at the time when that statute passed. But it has been since held, that By indictment. notwithstanding the statute inflicts a particular punish ment, and prescribes a specific method to recover the penalty, the party may be indicted at common law for disobeying the order. SECT. V. Of the Remedy against illegal Orders upon Relations. As the power to make these orders is vested exclusively No appeal. in the quarter sessions by statute, there can be no appeal to that jurisdiction. The chief remedy, therefore, is by removing the order into the court of king's bench, which, unless a case is stated, can only quash for such defects as appears upon the face of it. (1) It seems, from the wording of 43 Eliz. c. 2. s. 7., as if the relations enumerated were all liable. (2) See Rex v. Robinson, Burr. Rep. 799. Rex v. Commins, 5 Mod. 179. post. (3) Rex v. Fearnley, 1 Term Rep. 316. See post. If, however, the magistrates have exceeded their authority in making the order, the party may refuse obedience; for, if illegally made, that is a good defence against an indictment for disobeying it; and if the penalty given by the 43 Eliz. is sought to be recovered, in such a case the defendant may contest it by bringing an action for the illegal distress. CHAP. XXXI. Of compelling Parents to maintain their Family. (1) It has been already shown that an order cannot be made No order unupon a husband, directing him to maintain his wife, under 43 Eliz. c. 2. (2) The legislature has enacted more severe penalties against those who desert their families, by the following statutes: der 43 Eliz.c.2. upon husband to maintain his wife. 7 Jac.I. c.4. s.8. ning away and leaving their Persons run By 7 Jac. I. c. 4. s. 8. people able to labour, running away out of their parish, and leaving their families upon the parish, shall be taken and deemed incorrigible rogues. And children if they threaten to run away, and leave their families as chargeable, aforesaid, the same being proved by two sufficient witnesses deemed incorupon oath, before two justices of peace, the persons so rigible rogues. threatening shall, by the said two justices of peace, be sent Threatening to the house of correction (unless he or she can put in suf- to run away to be treated as ficient sureties for the discharge of the parish), there to be sturdy wanderdealt with, and detained as a sturdy and wandering rogue, ing rogues. and to be delivered at the said assembly or meeting, or at the quarter sessions, and not otherwise. But the statute only inflicted personal punishment upon those who deserted their families. It became necessary, therefore, to provide a further remedy for this inconve nience, and devise some method for maintaining the deserted families out of that substance which the fugitive has left behind. (1) As to the compelling Catholic or Jewish parents to maintan their Protestant children, see ante, chap. xxx. sect. 1. (2) Reg. v. Davison, ante, 232. (8). An order may be made upon a father, to maintain his child, by the express words of 43 Eliz. c. 2.; but quære, if this can be until after it has ceased to be part of his family? 5 Geo. I. c.8. s. 1. Churchwardens, &c. by warrant of two justices, may seize the offender's goods, &c.; and by order of quarter sessions, dispose thereof. A sufficiency only to be taken. Form of order. This was accomplished by 5 Geo. I. c. 8. s. 1. The churchwardens, or overseers of the poor of a parish or place, where any wife, or child, or children, shall be left chargeable, may, by warrant from any two justices, seize so much of the goods and chattels, and receive so much of the annual rents and profits of the lands and tenements of such husband, father, or mother, as such two justices shall order, for or towards the discharge of such parish or place, for the bringing up and providing for the same; which warrant or order being confirmed at the next quarter sessions, they, the justices of such quarter sessions, may make an order for the churchwardens or overseers for the poor of such parish or place, to dispose of such goods and chattels by sale, or otherwise, or so much of them, for the purposes aforesaid, as the court shall think fit; and to receive the rents and profits, or so much of them, as shall be ordered by the sessions as aforesaid, of his or her lands and tenements, for the purposes aforesaid. (1) The justices are not authorised by this act to empower the parish officers to seize the entire property of the person who leaves his wife chargeable, when a part will be sufficient to relieve the parish. The original order, therefore, by the two justices, ought to specify the sum to be raised; because the declared intention of the act is, that so much should be taken as the justices should think fit; meaning, that they should exercise their discretion upon the amount to be taken. This order should also specify how much property is to be seized, and then the order of sessions should state how much of the property seized is to be sold or appropriated. (2) (1) See also 59 Geo. III. c. 12. sects. 31, 32. empowering two justices to order overseers to receive pensions, and the wages of seamen in the merchants' service, and to apply them to the support of the wives and families of such pensioners and seamen, post, c.34. s. 1. (2) Per Lawrence J., Stable v. Dixon, 6 East, 172. |