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But the law compelling the maintenance of relations, as it is to be administered by justices of the peace, depends entirely upon the statute of Elizabeth. (1) The subject divides itself as follows: Ist, By whom this relief is to be ordered. 2d, By whom, and in what cases, it is to be given. 3d, Of the order by which they are to be required to relieve, and the means of inforcing it.
Of the Justices' Jurisdiction to order Relief.
The 43 Eliz. c. 2. enacts that the father, grandfather, mother, and grandmother, and children of impotent poor, being of sufficient ability, shall relieve and maintain them, according to that rate, as “by the justices of the county where such sufficient person dwells, at their general quarter sessions, shall be assessed.”
59 Geo. III. c.12. s. 36. In petty sessions.
But the power of making these orders, which by 43 Eliz, was confined to justices in their quarter sessions, is now extended to justices in their petty sessions by 59 Geo. III. c. 12. s. 36. It enacts, that any two or more justices of the county or other jurisdiction, in which any such sufficient person shall dwell, and they are thereby empowered in any petty session to make such assessment and order for the relief of every poor, old, blind, lame, impotent, or other poor person not able to work, upon and by the father, grandfather, mother, grandmother, or child (being of sufficient ability), of every such poor person as may by virtue of the said act be made by the justices in their general quarter sessions. Every such assessment and order to have the like effect, as if made in quarter sessions, and any disobedience thereof to be punishable in like manner.
Must be made
This species of relief continues in all other respects to by sessions where party
be regulated by 43 Eliz., which ordains this relief only domiciled.
(1) Vide Rex v. Jacob Mendez de Breta, i Ld. Raym. 699.
for persons who, from impotence or infirmity, are unable to work, and by no means requires that those who are able to obtain a livelihood by labour, but unwilling to do so, shall be supported by their relations. (1) It directs the assessment to be made by the general quarter sessions (2) of the county in which the person inhabits, upon whom it is to be made. If made at any other general sessions it is bad. (3) It is the party's residence within their county which give the magistrates jurisdiction to proceed against him; and if he come there for a temporary purpose, they have no power to make an order.
The defendant was brought to the bar upon a habeas corpus. It appeared, by the return, that he was committed by virtue of a warrant from a justice of the peace for the county of Middlesex, because he being the reputed grandfather of one B. G., a poor fatherless and motherless child, maintained at the charge of the parish of St. Giles in the Fields, and being also a man of ability, had refused to maintain or provide for the child, or find sureties for his appearance at the next sessions for the county of Middlesex. It was moved to discharge him, because he lived in Suffolk, and came to London, not to reside, but to follow some law-suits, and therefore, the quarter sessions of Middlesex had no power to make an order, the party inhabiting in Suffolk. The Court.
It is very reasonable that he, being of sufficient ability, should contribute to support his grandchild, but he is not compellable to do it by the course which has been taken. The child resides in the parish of St. Giles, in the county of Middlesex, and therefore the contribution must be here, but the party who is to pay it resides in Suffolk. The justices of Suffolk may Justices of one make an order in this case, and thereby cause the money order the mo
county may to be sent from thence to the parish of St. Giles; but the ney to be sent justices of Middlesex have no authority in this case. The court therefore ordered the defendant to be bound over to appear at the next quarter sessions to be held for the county of Middlesex (1); and upon his entering into recognizance for that purpose, he was discharged. (2)
to another. (1) See Rex v. Litton, post, 264. (4). Rex v. Gulley, ib. (5).
(2) Rex o. Charnock, an indictment for disobeying an order made at a general sessions, quashed. Comb. 418. Purnall's case, Salk. 476. Rex v. Turner, 5 Mod. 329. (3) Ibid. See 59 Geo. III. c. 12. s. 26. ante, 260.
Sessions' authority, original,
The authority of the sessions is original (3), and cannot be delegated to other justices, but they must themselves set the rate (4); and they cannot send poor persons from their own parish to their relation who should maintain them, but ought to make a rate or order of so much a week upon the relation. (5) And it seems that they may direct the money to be sent to him into another county. (6)
What Relations may be charged.
It has been ultimately decided, although the point was originally determined otherwise (7), that the 43 of Elizabeth extends only to natural relations, and not to such as are acquired by marriage. (8)
A father-in-law, therefore, is under no obligation to maintain his wife's child after the mother's death (9), nor
(1) Sic. in orig.
(3) Rex v. Kempson, i Bott, 369. Pl. 419. This order was stated to be made on the appeal of the churchwardens, &c., and objected to, be cause the sessions' jurisdiction is original, and it cannot come before them on appeal. But held well enough, for it is not an appeal from an order, and means only upon application.
(4) Rex v. Humphries Style, 154.
(7) Draper v. Glenfield, 2 Bulst. 345. Custodes v. Julies, Style, 285. City of Westminster v. Gerrard, 346, 347. Reg. v. St. Botolph's, Aldgate, Fol. 42.
(8) Rex v. Munden, 1 Str. 190. Tubb v. Harrison, 4 Term Rep. 118. Cooper v. Martin, 4 East, 76.
(9) Reg. v. Clentham, Fol. 30.
in her life-time (1), although the husband acquire an estate with her (2), nor a father his son's wife or widow (3) neither is a son-in-law, bound to maintain his wife's mother. (4)
· But it may be made on a grandfather of ability though the father is living, if he be unable. (5)
And the obligation extends only to such relations as are particularly enumerated in the statute. (6) An order, therefore, cannot be made upon a man to maintain his wife (7), much less a bastard child. (8)
Form of the Order of Maintenance, and Punishment for
The order must state, 1st, That the person upon whom it is made lives within the jurisdiction of the justices who
(1) Rex v. Munday, Fort. 303. Tubb v. Harrison, ante, 262. (8)
(2) Cooper v. Martin, 4 East, 76. Woodford v. Lilburn, 1 Bott, 379. Pl. 444.
(3) Rex v. Kempson, i Bott, 378. Pl. 443. 2 Str. 955. 2 Barnard, 329. 364. Rex v. Benoire, ib. 377. Pl. 442. Reg. v. Dunn, ib. 376. Pl. 479. and see Rex v. Tripping, 16 Vin. Abr. 424.
(4) Rex v. Munday, Fort. 303. Although his wife is joined in the order, and he had considerable effects with her : for the son-in-law is not within the act, and the wife cannot be of ability, because her estate is a gift to the husband, and he is a purchaser, for a valuable consideration.
(5) Reg. v. Joyce, 16 Vin. Abr. 423.
(6) Yet quære, whether grandchildren are not compellable by this act to maintain their grandfather or grandmother? The statute requires the grandfather and grandmother to relieve, but omits grandchild, unless it is comprehended under the word “ children." But see Walton o. Sparks, Cas. of Sett. 210.
(7) Reg. o. Davison, 11 Mod. 268. But see Lord Hardwicke’s opinion, Rex v. Kempson, ante, (3).
(8) Budwath v. Dumply, Salk. 123. Per Croke and Whitlock Js., City of Westminster v. Gerrard, 2 Bulst. 346.
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)
May have retrospect.
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, i 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.
(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 o. Dixon, 6 East, 171.
(9) Jenkin's case, 2 Salk. 531., Rex v. Gulley, ante, (5). (10) Quære, if this is not to be understood by paying a weekly allow.
See Shermanbury v. Bolney, and Rex v. Jones, ante, 262.(5). (11) Reg. v. Joyce, 16 Vin. Abr. 423.