Twambrookes. It was there held, that a perfon under age, who after being abfent from his father's family for a confiderable time, returned to it before he was an adult, or married, and before he had acquired a fettlement for himself, was not emancipated, but was intitled to the benefit of his father's fettlement. So in this cafe the fon returned before he had attained the age of 21, not having gained any fettlement for himself distinct from that of his father, nor having become the head of a family, and therefore this cafe must be governed by that of Witton cum Twambrookes. The diftinction which has been attempted to be taken between fome of the former cafes and the prefent, that here the fon put himself out to fervice, is not material; for till the age of 21, not having done either of the acts above alluded to, he continued a part of his father's family. The KING V. JAMES HARRIS. The Defendant was a Pilot, and was tried before Lord Kenyon upon an information for a misdemeanor, in difobeying an order of council, in not remaining to perform quarantine on board a fhip he had boarded to conduct into the Port of Bristol. By the 26 Geo. II. c. 6. f. 1. it is enacted, that all perfons, going on board fhips from infected places, fhall obey fuch orders as the King's Council fhall make. But the statute having directed. a fpecific punishment on perfons who had performed the voyage going afhore before the quarantine expired, this was cafus omiffus, or at least no greater punishment could now be given than that mentioned in the statute, namely, fix months imprisonment. LORD KENYON, Ch. J.By the first fection in this act of parliament, the king is authorifed to make fuch orders in council, refpecting perfons going on board fhips which come from infected places, as he shall be advised. Now, this indictment ftates, that the king in council made an order in pursuance of this act, which the defendant violated; and therefore, without adverting to the other claufes in this act of parliament which are adapted to other offences, the the question is, Whether or not the difobedience of an order thus made by the king in council be not offence at common law? And most unquestionably it is. This queftion, or at leaft the principle of it, does not now arise for the first time. In R. v. Robinson, 2 Burr. 799, the defendant was indicted for difobeying an order of maintenance of his grand-children. The statute 43 Eliz. c. 2. f. 7, enacts, that fathers, grand-fathers, &c. fhall maintain their children, and grand-children, in fuch manner as the justices shall direct; and it annexes the penalty of 20l. per month, to be recovered in a fummary way by diftrefs, under the eleventh fection. The profecutor in that cafe however thought proper to prefer an indi&ment against the Defendant for disobeying an order of Juftices made upon him; and, after verdict, a motion was made in arrest of judgment, which was argued very ably, on the ground that, as the act of parliament had annexed a Specific punishment, and prescribed a particular mode of proceeding, it was not an indictable offence. But the Court, after great deliberation, were clearly of opinion, that, though the act of parliament had given the juftices power to make the order, the breach of it was indictable as a misdemeanor at common law. So here this ftatute gave authority to the king in council to make the order in question; and the difobeying it becomes an indictable offence at common law. ASHHURST, J.-It is a clear and established principle, that, when a new offence is created by an act of parliament, and a penalty is annexed to it by a separate and substantive clause, it is not neceflary for the profecutor to fue for the penalty, but he may proceed on the prior claufe, on the ground of its being a mifdemeanor. Now, here the Defendant has been guilty of a breach of the first section of this act of parliament, which exprefsly gave power to the king in council to make orders relative to perfons going on board ships liable to perform quarantine; for the indictment states, that the king in council made an order on this fubject, which it was competent to him to make, and that the Defendant difobeyed it. For this he is clearly punishable, as for a mifdemeanor at common law. This renders it unneceffary to make any détermination on the fifth fection of the act: but, if it were neceffary to confider it, I should think that it relates only to the officers and paffengers who came on board the ship from the infected place, and not to perfons going on board after her arrival here. BULLER, BULLER, J.-On the first clause in this act of parliament, coupled with the order in council, there is no doubt but that the Defendant may be punished upon a common law indictment. I agree alfo with my brother Afbhurst, that the Defendant is not within the meaning of the fifth fection; which is material to be confidered, on account of the punishment to be inflicted on him; becaufe, if he be liable to be fued hereafter for the 200l. penalty, we should not inflict the fame punishment as if he were not liable to that pénalty. Now, that section subje&s the captain to a penalty of 500 for quitting the fhip himfelf, or for fuffering any feaman or paffenger fo to do; and then the Legiflature confidered what punishment should be inflicted on the seamen or passengers quitting the fhip; and enacted, by the latter part of the fame fection, that they should be imprisoned for fix months, and fhould forfeit 2001. For it fays, "if any perfon shall fo quit fuch fhip, &c." namely, thofe perfons before defcribed, the feamen and paffengers; and it pro ceeds to enact that " every fuch perfon fo quitting, &c. shall forfeit 2001." This fection therefore, wholly relates to the captain, feamen, and paffengers, and not to perfons in the Defendant's fituation. GROSE, J.-The a&t of parliament having given power to the king in council to make the order in queftion, and not having annexed any specific punishment to the disobedience of it, it is undoubtedly a common law offence, and must be punished accordingly. Judgment was then pronounced, that the Defendant be imprisoned in the King's Bench prifon for one year. The Corporation of LYNN, v. the Corporation of LONDON in Error. This was an action tried in the Court of Common Pleas upon the writ de effendo quietum de theolonio. The declaration flated, that, among other liberties and privileges, the citizens of London had immemorially enjoyed the privilege that all their goods should be quit and free of all toll and other customs throughout England; yet, notwithstanding the faid VOL. II. writ writ the Corporation of Lynn had disquieted the faid citizens, and required of four of them tell within their Borough. The Corporation of Lynn (the Defendants below) traverfed the right of exemption claimed by the City of London; and alfo pleaded that the faid four perfons were not citizens of London. A verdict was taken for the Plaintiffs in the Common Pleas; and the Court gave Judgment, that the faid City of -London be quit of yielding fuch toil, &c. in the faid Borough of Lynn. The Defendants removed the Record into the Court of King's Bench by a writ of Error; upon which this Court now gave Judgment as follows: LORD KENYON, Ch. J.-If this cafe were to depend entirely on the last topick, namely, whether the exemption claimed can extend to every citizen, whether resident or not, I confefs I fhould have wished to consider that point more maturely before I gave my opinion, because it is a point of great importance. But as I have fatisfied my mind that one (and the principal one) of the objections is well founded, I am not anxious to go through all the smaller ones It is admitted that for near five centuries no fuch proceeding as the present has been inftituted; but the fubje&ts who have had rights to affert, or had to complain of the undue exertion of the claims of others, have been content to have recourse to more modern proceedings in order to obtain redress; but the City of London have now thought proper (for reafons best known to themselves) to travel out of this ordinary..course, not for the purpofe of obtaining redress for any injury which they have actually fuffered, but merely to affert their claim. Generally speaking, the object of the laws in civilized countries is to fecure to every fubject his rights, and to afford him protection when thofe rights are invaded: and that principle is founded in good fenfe. But this declaration does not complain of any injury having been done to any individuals; it only alledges that the Defendants (below) difquieted the Plaintiffs, and required of five citizens, by name, certain tolls, &c. Arguing à priori, in point of policy we should lean against fuch a proceeding as this. For if this action can be maintained against the corporation of Lynn, it may be equally fupported against any individual in the kingdom for the moft minute toll, fuch as a toll in a market, &c. and it frequently happens that such tolls are in the hands of perfons who are neither able nor willing to difpute dispute fuch a claim as the prefent. And though it is faid that a judgment of this fort is not to be followed up by cofts (upon which I am not prepared to give any opinion); yet the expences of a party's defending himself against such a claim as this would, in many inftances, be more than adequate to the claim in difpute. In point of policy, therefore, it is to be wished that a party, who has done no act to enforce his claim, and who would rather abandon his right than difpute it, fhould not be dragged nolens volens into a Court of Juftice to agitate fpéculative questions of right. But, if fuch be the law, it must be fubmitted to, however oppreflive it may be to any bodies of men or to individuals. Then we must confider whether these proceedings can be fupported by the precedents which have been cited on this very writ, or by arguments drawn from analogy to other proceedings of the fame nature: for it is perfectly clear that they cannot be fupported from the general analogy of the law, which does not permit any perfon to be impleaded for claiming rights which he does not affert. Now, fome precedents on this very writ have been cited; the first of which in point of time are thofe in the Register, which we are told is coeval with the law itfelf. It is not neceffary to go through each of thefe; but the refult from them all is, that they complain of a damage to the party, and in the fubfequent proceedings on the writ uniformly ftate what the nature of that damage was. Fitzherbert says, in commenting on this writ," And upon that (namely, the writ) he may have an alias, and a pluries, and an attachment, if need be, against thofe who take the toll." Then two precedents were cited at the bar, the one from Madox's Firma Burgi, the other from Ryl. Plag. Parl., which were urged as decifive authorities in favour of these proceedings: but a complete anfwer was given to thofe by the counfel for the Plaintiffs in error, and it was fhewn that in both an actual injury was complained of, for the parties complaining were diftrained. The fame obfervation applies to the writ ne injuftè vexes; and to that of monftraverunt, of which it is faid that, if after the writ fued out the lord diftrain the tenant, the latter may proceed. The laft authority, which was cited by the Defendants in error, on the general queftion, was that in 1 Inft. toc This ftruck me at firft as worth further confideration: but now I think it will not be found to govern this cafe. The opiuion of Lord Coke arifes in his comment on the text in Littleton: who himfelf feems to have thought that, if the |