burrow baldwin et ux versus Blackmore esquire Tuesday d may Pauper return to  the parish from whence remove without a certificate may be commit to the house  of correction see durn durn this be a case reserve at the assize for the  county of Lancaster in a action for a assault upon and false imprisonment of  the plaintiff wife case that the plaintiff William Baldwin and Susannah his  wife be pauper legal settle in the township of Banknewton in Yorkshire have be  regular and proper remove by a order of two justice of the county of Lancaster  from Marsden in Lancashire to the say township of Banknewton in the say county  of York as the place of their last legal settlement which order be not appeal  from that afterward they both of they return of their own accord and without  bring any certificate with they from Banknewton to which they belong to  Marsden aforesaid from whence they have be so remove by the say order of two  justice of which complaint be make in write and upon oath to the defendant who  be a justice of peace of the say county of Lancaster wherein the say parish of  Marsden lie by the overseer of the say parish from which the pauper have be  lawful remove and to which they unlawful return he issue his warrant to bring  the two burrow pauper the man and his wife before he who be accord bring  before he and the fact be full prove upon oath make by Thomas Murgatroyd one  of the churchwarden of Marsden aforesaid he commit both of they the man and  his wife to the house of correction there to remain until they shall be  discharge by due course of law the warrant be direct to the constable of  Marsden to convey and to the master of the house of correction in Preston to  receive and be in these word I whereas Thomas Murgatroyd one of the  churchwarden of the township of Marsden in the say county have make oath  before I one of his majesty justice of the peace in and for the say county  that William Baldwin and Susan his wife poor person have be late remove by a  order under the hand and seal of Roger hesketh and rigby Molineux esquire two  of his majesty justice of the peace and quorum in and for the say county from  the say township of Marsden unto Banknewton in the west ride of the county of  York as to their last lawful settlement be now return back to inhabit in the  say township of Marsden contrary to the statute in this behalf make these be  therefore in his majesty name to command you forthwith to convey they the say  William Baldwin and Susan his wife to the house of correction abovesaid and  deliver they to the master thereof hereby require he to receive they into his  custody and they safe to keep until they shall thence be discharge by due  course of law hereof fail not at your perilGiven c this that day of February c  that under this warrant of commitment the plaintiff and his wife be keep in  prison in custody of the keeper of the house of correction at Preston from  that February to that march follow notice be prove to be give to the defendant  of bring the action one month before it be bring upon the trial of this cause  there be a verdict for the plaintiff and S damage subject to the opinion of  the court upon the two follow question videlicet saint whether there ought not  to have be a previous conviction of vagrancy dly whether the wife can be  convict of vagrancy or be liable to be send to the house of correction for  return without a certificate as she only accompany and reside with her own  husband N B by c c it be provide that any person or person may go to work in  any parish or burrow place carry with they a certificate of their be  inhabitant of their proper parish and in such case if they shall not return  when their work be finish or shall fall sick or impotent while they be in the  say work it shall not be account a settlement but two justice of the peace may  convey the say person or person to the place of his or their habitation as  aforesaid and if such person or person shall refuse to go or shall not remain  in such burrow er p parish but shall return of his own accord to the parish  from whence he be remove it shall and may be lawful for any justice of the  peace of the city county or town corporate where the say offence shall be  commit to send such person or person offend to the house of correction there  to be punish as a vagabond or to a public workhouse in the Act aftermentioned  there to be employ in work or labour by g c it be enact that whereas the  number of rogue vagabond beggar and other idle and disorderly person daily  increase c all person who threaten to run away and leave their wife or child  to the parish and all person who shall unlawful return to such parish or place  from whence they have be legal remove by order of two justice of the peace  without bring a certificate from the parish or place whereunto they belong and  also all person who c c shall be deem idle and disorderly person and it shall  and may be lawful for any justice of peace to commit such offender be thereof  convict before he by his own view or by their own confession or by the oath of  one or more credible witness or witness to the house of correction there to be  keep to hard labour for any time not exceed one month as to the two point it  be insist on behalf of the plaintiff saint that there ought to have be a  previous conviction of vagrancy before the justice can commit to the house of  correction at all dly that Susannah the wife follow and reside with her own  husband to and at Marsden can not be convict of vagrancy for return thither  without a certificate this cause be first argue on Tuesday the first of June  by Mr Yates for the plaintiff and Mr Clayton for the defendant burrow and  again on Friday the that of November follow by sergeant pool for the plaintiff  and Mr Norton for the defendant for the plaintiff it be argue to the follow  effect saint point on g previous conviction be express make necessary the word  of it be be thereof convict c and three method of conviction be specify  videlicet view confession and proof by one or more witness now here be nothing  but the mere complaint and information of the parish officer without any  adjudication by the justice that it be true therefore the justice proceed  without any authority on c c no previous conviction be indeed necessary by any  express word of the Act of parliament but such a arbitrary and extraordinary  power ought to be very narrow watch however this can be a proceed under the  statute of for the foundation of this warrant be the information of the  churchwarden on oath which plain go upon a offence create since that statute  of c videlicet return without bring a certificate from the parish to which  they belong d pointThis return of the woman can be consider as a unlawful  return a feme covert be oblige to follow her husband if she commit theft in  company with her husband it shall be take to be do by the coercion of her  husband hawk p c foe sect bro coran Kelynge hale h p c vol pa and pa Inst  indeed there be case where the wife be the principal actress as keep  bawdyhouse where she be punishable with her husband but here she be guilty of  no offence at all as to its be a hard actionours be a very hard case contra  for the defendant the justice of peace who have commit the woman it be argue  to this effect saint pointif this proceed shall be take to be on g and even  suppose a conviction to be previous necessary yet it be not necessary that  such a conviction shall be express state upon this case but the justice may at  any time draw up a conviction in form upon the fact here state which  conviction he be not oblige to draw up in form till call upon burrow but this  proceed be upon c c and the case be within the word of that Act videlicet  return of her own accord to the parish from whence she be remove and these two  act of c and g be consistent and the latter burrow er p do not repeal or  vacate the former it operate as a save under that Act and upon this former Act  no conviction be necessary d point a wife may be guilty and liable in commit a  crime with her husband from trespass up to murder and treason in dr Hussey  case in hob and in Lord coke a general rule be lie down as to marry woman that  where they offend voluntary and know they be liable to punishment this be a  new law and the wife be intend to be include in it and if wife be within the  mischief of a statute they shall be include in it the matrimonial vow must be  understand as restrain to lawful act the wife ought not to obey her husband in  unlawful act in trespass way et arms the wife may be seize for the fine the  coercion of the husband only excuse her from suffer for the crime it do not  make the act lawful she ought not to commit theft although the suppose  coercion of the husband excuse her from punishment this Act express include  all person whatsoever the word be general and so also be the intention and the  husband act of return be unlawful and therefore she ought not to follow he and  thereby commit a unlawful act herself nor be she oblige to follow he for  maintenance for the parish to which they be remove be oblige to maintain her  in the same manner as if her husband have run away if it be otherwise here  will be a innocent parish who must be at a continual expense of remove the  wife back so often how often without be reimburse for their charge and if she  be oblige to return with her husband once she will always be oblige equal so  to do whenever he shall return himself all their reason will hold just as  strong in oblige the wife to assist her husband and obey he in burrow keep a  bawdyhouse as in any other illegal act yet for keep a bawdyhouse she be  certain punishable with her husband this be not a commitment in execution and  by way of judgement for a offence it be a commitment on c and not on g or for  any definite time they may have be bail on this commitment for it be only till  discharge by due course of law and though the word of the Act of c be there to  be punish as a vagabond yet this be only in order to be amenable to justice  upon a future indictment and so the send they to a public workhouse there to  be employ in work and labour be no punishment to a poor person who be use to  work and labour it will be high unreasonable that the husband who can not  bring a action in his own name and on his own account shall be permit to bring  it on account of his wife and in her name against a magistrate who have act  for the public good and himself receive the benefit of what have be original  occasion by and take its rise from his own unlawful act the counsel for the  plaintiff reply to the follow effect as to the conviction be still in the  power of the justice to draw up in form it do not appear that there ever will  or can be such a conviction but it be plain that there be none it do not any  how explicit appear upon what Act this commitment be find but however it must  be on g because the information be for a offence express within that statute  and the warrant of commitment be find upon the information therefore there  ought to have be a previous conviction the certificate can not be in the wife  power to produce her husband must have it if there be any we do not deny that  the wife be so far within the intent of this Act of parliament that she be  capable of be a vagrant she may have go about beg she may have return to this  parish without her husband but we say that here be no act of vagrancy state  and for the particular fact that be state her V hob and   dr Hussey case where  whatever may be to the purpose in the present case if any part of it be at all  so will be find salk queen v William m Ann b r and king v Hayward a late case  but this commitment be to the house of correction burrow er p be sub potestate  man be a excuse to her she be within all the excuse mention in dr Hussey case  for person guilty against the letter of a law the hardship of the parish to  which these person return can destroy the general law of the land burrow a  marry woman keep a bawdyhouse joint with her husband vary from the general  principle because there she be the principal actor and chief manager and  conductor the present commitment be till discharge by due course of law but  still it may be a commitment on g as it do not exceed a month though it do not  indeed fix it to a month it be a quite new doctrine that imprisonment in a  house of correction be no punishment certain it be a punishment and no small  one as to the husband become entitle to the damage when recover that arise  from the law itself but it be proper the wife action and will survive to her  though she be covert can by law bring it in her own name this therefore be the  act of the law and ought not to be object to the husband much less to the wife  who action this proper be Lord Mansfield desire to be inform how the usage be  though it will not indeed as he observe alter the law the counsel have not  make this inquiry but both the counsel and also Mr just foster and Mr just  Wilmot say that the Act of c have be always consider as general and not as tie  up by the particular word of reference to that particular case of go to work  only and Lord Mansfield say that perhaps that may have be practice for the  sake of general good he strong intimate that it will be a right thing to  compromise this cause and if it show not be so he desire to know the practice  and usage about send the wife to the house of correction with the husband as  to c he say he be now satisfy by his brother foster that it have always be  take as a general law notwithstanding the word of reference which have strike  he on the read Mr just foster desire to know also how the practice have be as  to child Mr Clayton who be counsel for the defendant in the former argument  say he have know the child also commit burrow cur advis I e eventual if not  compromise on Tuesday that April this case be mention at the bar as stand for  the opinion of the court Mr Norton for the defendant then say he have several  certificate of its be the practice for justice to commit the wife as well as  the husband for return to the parish from whence they have be remove although  she so return with her husband Lord Mansfield now on Tuesday d may deliver the  resolution of the court he first state the whole case very full and he preface  that it be manifest that the justice have not act intentional wrong and it be  plain that the jury be of that opinion as appear by their give only S damage  the court will glad therefore have lean towards excuse this gentleman from  suffer for what lie have honest and without any bad intention do if they can  have find he justifiable by any legal excuse but there be ne fatal objection  to his proceed which we can get over and which put all the other point out of  the case and that be that the warrant of commitment be illegal the legality of  the warrant depend upon two act of parliament or at least upon one of they for  there be two act of parliament upon one of which two this warrant must be find  though it do not appear upon which of the two the justice proceed these two  act be g c a law make before certificate under the t late act exist and g c  which relate to person return c without bring such a certificate vide ante p W  c first introduce they burrow er p now this warrant be not within this former  Act of c nor be the case itself within it a these person do not go to any  parish carry with they a certificate of their be inhabitant of their proper  parish nor be the commitment make to the house of correction there to be  punish as a vagabond nor to a public workhouse there to be employ in work or  labour as that statute direct so that the warrant be not at all agreeable to  the direction of that Act which specify the particular burrow manner of send  the offender to the house of correction or to a public workhouse for it be  only to remain till discharge by due course of law neither can this warrant be  good upon the latter Act of g c because though this be indeed a commitment to  the house of correction which the latter Act direct yet it be to remain there  till discharge by due course of law whereas by this Act the power give the  justice be to commit such offender to the house of correction there to be keep  to hard labour for any time not exceed one month but this warrant be quite  general it be a indefinite commitment not for a precise limit time as this Act  express direct and require therefore the warrant of commitment be total  illegal and consequent the plaintiff be entitle to the damage that he have  recover and you will observe that we go only upon the warrant which for the  reason I have mention we hold to be total illegal rule that the postea be  deliver t the plaintiff