(4) Must shew Presence of putative Father or allege Excuse for Omission. (5) Need not state that Evidence given on (C) APPEAL [NOTICE OF]. (A) PROOF OF ILLEGITIMACY. There is no absolute presumption of law as to the continuance of life, nor any absolute presumption against a party doing an act because the doing of it would make him guilty of an offence against the law. In every instance the circumstances of the case must be considered. (The King v. Twyning, 2. B. & Ald. 386, explained.) A, a Scotchman, married in Scotland and went abroad; his wife cohabited with C, and had children by him. To make such children legitimate, it was held necessary for those who asserted their legitimacy to prove either a legal origin of the cohabitation, or a change in the nature of it after the death of A had become known to all the parties. The mere fact that C and the woman continued to live together was not sufficient for that purpose. Under such circumstances the children were held illegitimate, though born after the date of A's death. C and B live together as man and wife, in the bona fide belief that A, to whom B had been lawfully married, was dead; in fact he was alive. Quare-will his subsequent death, during the continuance of their cohabitation, confer on it, according to the law of Scotland, the character of a legal marriage? Lapsley v. Grierson, 1 H. L. Cas. 498. The illegitimacy of a child, born of a married woman, is established, beyond all dispute, by evidence of her living in adultery at the time when the child was begotten, and of her husband then residing in another part of the kingdom, so as to make access impossible. The Barony of Saye and Sele, 1 H. L. Cas 507. The child of a married woman is always presumed to be legitimate; the evidence to rebut which must always be strong, distinct, satisfactory, and conclusive. Hargrave v. Hargrave, 9 Beav. 352. (B) ORDER OF Bastardy. (a) Jurisdiction to make the Order. (1) Petty Sessional Division. The fact of petty sessions for a division of a county having been usually held at several places within the limits of that division does not constitute such places separate petty sessional divisions under 8 Vict. c. 10. s. 10. Where an order of affiliation purported on its face to be made by Justices of the county of L" at a petty sessions holden in and for the petty sessional division of H at H aforesaid," and it appeared that H was one of several places within the petty sessional division of B, where the petty sessions were usually holden, and that the Justices who made the order usually acted for the townships in the neighbourhood of H, including the place where the mother resided,-Held, that the order shewed no jurisdiction, as it did not appear to be made at a petty sessions holden in and for the petty sessional division where the mother resided. Regina v. Whittles, 18 Law J. Rep. (N.s.) M.C. 96; 13 Q.B. Rep. 248. (2) Upon second Application. Where upon an application by a woman under 7 & 8 Vict. c. 101. s. 2, for an order upon a person whom she alleged to be the father of a bastard child, of which she had been delivered within twelve calendar months before the application, an objection was raised that a prior order had been made on the same complaint, and that it was incumbent on the applicant to shew that such prior order had been quashed, not on the merits, in order to entitle her to apply again, under 8 Vict. c. 10. s. 4, and no evidence was given to shew that such prior order ever existed; but the Justices at petty sessions decided that the complainant was bound, notwithstanding, to prove that the order was quashed for a defect in form, and, on her failing to do so, refused to hear the application,-Held, that they were not justified in assuming the existence of the former order: and a mandamus was granted, commanding them to entertain the complaint. Regina v. Bridgman, 15 Law J. Rep. (N.S.) M.C. 44. A woman applied for an order of affiliation to the Justices of the petty sessional division in county A, and was refused. She subsequently removed into county B, and there made a second application, and the Justices made an order, which on appeal was confirmed by the Quarter Sessions :-Held, that as the petty sessions and the Quarter Sessions had general jurisdiction over the subject-matter, they were bound to hear and determine such second complaint; and that although proof of the former application having been dismissed upon the merits would have been a good answer to such second application, neither the decision of the Justices nor of the Quarter Sessions could be reviewed by this Court. Held, also, that upon appeal by the putative father, the Quarter Sessions may confirm such order without requiring any corroborative evidence, if the appellant, after he has unsuccessfully taken objections in point of law, retires from the case. Regina v. Justices of Buckinghamshire, 18 Law J. Rep. (N.S.) M.C. 113. An order of affiliation void for defects appearing upon the face of it is altogether a nullity, and may be treated just as if the Justices who made the order had never heard the case at all; and it is not necessary to proceed either by way of appeal or writ of certiorari in order to quash it. Where, therefore, such a defective order had been made, and served, but not acted upon, and upon a second application in the same matter two Justices made another valid order of affiliation,-Held, that the Justices had jurisdiction to make the second order, although the first had not been got rid of upon appeal or by writ of certiorari, and that an indictment for disobedience of it was maintainable. Semble-Per Parke, B. that the second order would have been equally valid if the Justices first applied to had, after hearing the complaint, refused to make an order. Regina v. Brisby, 18 Law J. Rep. (N.S.) M.C. 157; 2 Car. & K. 962; 1 Den. C.C. 416. Where Justices in petty sessions have heard an application for an order of affiliation, and refused to make any order, on the ground that the evidence of the mother was not corroborated in some material particular, the mother is not barred from making a second application within the period limited by 7 & 8 Vict. c. 101. Regina v. Machen, 18 Law J. Rep. (N.S.) M.C. 213. (3) After Abandonment of former Order. An application on summons for an order of affiliation was heard before H and B, two Justices, on the 14th of April. An adjournment took place to the 17th, when the Justices forming the Court were H and C. An order was then made, and it was appealed against, on the ground that the mother had not been re-sworn on the second occasion. Afterwards, on the 2nd of May, the attorney for the mother gave notice of abandonment of the order, and tendered 17. 10s. for costs, which were accepted as costs of the adjournment only. A subsequent application being made to two Justices for an order in the same matter,-Held, that they were not bound to entertain the application, the full costs of the former order not having been paid. Quare-Whether, if such full costs had been paid or tendered they could be compelled to entertain such application, the first order not having been quashed or vacated. Regina v. Hinchliffe, 16 Law J. Rep. (N.s.) M.C. 78; 10 Q.B. Rep. 356. (4) Where Mother a married Woman. Under 7 & 8 Vict. c. 101. and 8 & 9 Vict. c. 10, an order of maintenance may be made on the putative father of a bastard child of a married woman, though those statutes in their language only apply to single women. Regina v. Collingwood, 17 Law J. Rep. (N.s.) M.C. 168; 12 Q.B. Rep. 681. (5) Where Child born in Foreign Country. The 7 & 8 Vict. c. 101. does not enable a foreign woman who has been delivered abroad of a bastard child to obtain an order of affiliation against the putative father resident in England. Regina v. Blane, 18 Law J. Rep. (N.s.) M.Č. 216. (b) Form and Requisites of the Order. (1) Must shew Application by and before proper Parties. By an order of Quarter Sessions, after reciting that the overseers of the township of H had applied to the Justices of petty sessions for an order on D S, the putative father of a bastard child, and that D S had entered into a recognizance to answer the charge at the Quarter Sessions, and that the overseers at such sessions applied to the Court for an order, &c., it was, upon the hearing, &c., adjudged that DS was the father, &c., and it was ordered that he should pay to the said overseers the sums mentioned in the order, to reimburse them, &c., and for maintenance, &c. :-Held, that the order was bad on the face of it, for shewing that the application was made by the overseers, without also shewing that there were no guardians for the parish of H, or that it was not situate in a union. Regina v. Smith, 15 Law J. Rep. (N.s.) M.C. 41; 7 Q.B. Rep. 543. The caption of a bastardy order stated its being made "at a petty session holden, &c., before us, A B and C D, Her Majesty's Justices of the Peace for the said riding, and a majority of the Justices now present," and was signed by them :-Held, that it must be taken in effect to state, that A B and C D were Justices of the Peace, and a majority of those present; and that it was sufficient to state in the order that the defendant was duly served, and appeared at the hearing, and that a recital of the Justices hearing "all the evidence on oath, tendered on behalf of," &c., was sufficient. Ex parte Boynton, 1 L. M. & P. 12. (2) Must allege Proof of Service of Summons. Under the statute 7 & 8 Vict. c. 101. s. 3, which entitles Justices in petty sessions to make an order of maintenance on the putative father of a bastard (although he does not appear, and there has been no personal service of the summons on him', on proof that the summons "was left at his last place of abode six days at least before the petty session," the summons must be left at his present place of abode, if he has any at the time of the service; at his last place of abode, if he has none. Proof of the proper service of the summons is essential to give the Justices jurisdiction; and, semble, an allegation in the order that such proof has been given, as averred in the form No. 8. in the schedule of the stat. 8 & 9 Vict. c. 10, is necessary to the validity of the order. If the summons is left at a place which the person leaving it believes to be the last place of abode of the party summoned, and gives evidence of such service of the summons before the Justices at petty session, the latter have prima facie jurisdiction to make the order of maintenance; but the party summoned is at liberty to shew by affidavit that the summons was not served at his last place of abode, and if the fact be proved, this Court will grant a certiorari to bring the order up to quash it as being made without jurisdiction. Regina v. Evans, 19 Law J. Rep. (N.S.) M.C. 151; s. c. nom. Ex parte Jones, 1 L. M. & P. 357. (3) Must shew Application made within Forty Days after Summons. An order of affiliation, made under 7 & 8 Vict. c. 101. and 8 Vict. c. 10, must shew, upon the face of it, that it was applied for within forty days after the service of the summons on the putative father of the child. Regina v. Rose, 15 Law J. Rep. (N.S.) M.C. 6; 3 Dowl. & L. P.C. 359. (4) Must shew Presence of putative Father, or allege Excuse for Omission. An order of affiliation which stated "that S (the putative father) having been served with a summons, and now appearing in pursuance thereof, and it being now proved to us (the Justices) in the presence and hearing of the attorney attending on behalf of the said S, that the child was born a bastard, &c., and we having, in the presence and hearing of the said attorney attending on behalf of the said S, heard the evidence of such woman, &c., do adjudge, &c.,"Held, sufficient. Regina v. Shipperbottom, 16 Law J. Rep. (N.s.) M.C. 113; 10 Q.B. Rep. 514. Where putative father appears before Justices in pursuance of a summons, issued under 7 & 8 Vict. c. 101, upon application of the mother of a bastard child it must appear upon the face of the order of bastardy that the evidence upon which the order was made was given in the presence and hearing of the putative father, or an excuse for the omission must be alleged. Regina v. the Duke of Grafton, 17 Law J. Rep. (N.S.) M.C. 125; 5 Dowl. & L. P.C. 568. (5) Need not state that Evidence given on Oath. The form of order given in the schedule to 8 Vict. c. 10. does not require a statement that the evidence given was on oath. The Queen v. the Justices of Buckinghamshire (14 Law J. Rep. (N.s.) M.C. 45,) overruled. Regina v. Shipper bottom, 16 Law J. Rep. (N.S.) M.C. 113; 10 Q.B. Rep. 514. An order in bastardy, made under 7 & 8 Vict. c. 101, did not state that the evidence of the mother was given on oath, but substantially followed the form given in the schedule to 8 Vict. c. 10, which was passed for the purpose of curing defects of form in orders under the former act :-Held, that as the latter statute rendered valid all orders made according to the form given in the schedule, or to the like tenour and effect, the above omission was immaterial, and that the words "on oath" were not required to be inserted in the form given in the schedule. Regina v. Justices of Cheshire, ex parte Fernyhough, 15 Law J. Rep. (N.s.) M.C. 3; 3 Dowl. & L. P.C. 337. (C) APPEAL [NOTICE OF]. At a petty sessions held on the 24th of June, the Justices present, on the complaint of the mother of a bastard child, adjudged one R to be the father, and ordered him to pay a sum weekly to the mother for its maintenance, and a copy of the order, dated the 24th of June, was served on R on the 27th of June, who, within twenty-four hours, gave notice of appeal to the mother, and entered into the necessary recognizances under 7 & 8 Vict. c. 101. s. 4. On the trial of the appeal, it being objected that the notice of appeal was given too late, evidence was tendered that the order had been in fact signed by the Justices on the 27th of June, and not on the 24th, but was rejected by the Justices, who held that the order must be presumed to have been made on the day when it bore date, and confirmed the order:-Held, that such evidence ought to have been received. Under 7 & 8 Vict. c. 101. s. 4, requiring notice of appeal to be given "within twenty-four hours after the adjudication and making of any order on the putative father," the time for appealing must be calculated from the signature of the order by the Justices. Regina v. Justices of Flintshire, 15 Law J. Rep. (N.S.) M.C. 50; 3 Dowl. & L. P.C. 537. Service of notice of appeal, under 7 & 8 Vict. c. 101. s. 4, need not be made personally on the mother, if left at her usual place of residence. Regina v. Justices of Cheshire, 15 Law J. Rep. (N.S.) M.C. 114; 4 Dowl. & L. P.C. 94. Under 8 & 9 Vict. c. 10. s. 6. the mother of a bastard child is a competent witness to prove that she had due notice of appeal under 7 & 8 Vict. c. 101. s. 4. Sunday is to be excluded in computing the twenty-four hours within which the putative father must give notice of appeal, against the order of affiliation, under the 7 & 8 Vict. c. 101. s. 4. Regina v. Justices of Middlesex, 17 Law J. Rep. (N.S.) M.C. 111; 5 Dowl. & L. P.C. 580. Justices at petty sessions verbally adjudged a man to be the putative father of a bastard child, and ordered him to pay a certain sum for its maintenance. He immediately, and before the order of bastardy was drawn up and signed, gave the mother of the child verbal notice of appeal. The order was afterwards drawn up and signed, and dated the day of the adjudication, and was in such terms as to make it apparently a contemporaneous judgment with the order pronounced verbally:-Held, that the notice of appeal was sufficient, as the written order had for this purpose relation back to the time of the verbal adjudication. A verbal notice of appeal given to the mother by the clerk of the attorney of the putative father, in the presence and by the direction of the latter, is a sufficient notice of appeal. Regina v. Justices of Huntingdonshire, 19 Law J. Rep. (N.S.) M.C. 127; 1 L. M. & P. 78. (D) RECOGNIZANCE [NOTICE OF]. By 8 Vict. c. 10. s. 3, it is provided that the putative father of a bastard child entering into the recognizance conditioned for trial of an appeal, (as required by 7 & 8 Vict. c. 101. s. 4,) “shall forthwith give or send a notice in writing of his having so entered into such recognizance to the woman in whose favour the order shall have been made, and in default of his giving or sending such notice as aforesaid, the appeal shall not be allowed; provided that the sending of such notice by the post shall be taken to be sufficient." A recognizance was entered into on the 14th (a Saturday), and notice was sent by a messenger on the 19th, who endeavoured on that and several successive days, to effect personal service ineffectually; the notice was never actually served until the 31st:-Held, that the service was too late. Ex parte Lowe, 15 Law J. Rep. (N.s.) M.C. 99; 3 Dowl. & L. P.C. 737. An order of maintenance was made on the 9th of April, and on the 13th the appellant entered into recognizances, pursuant to 8 & 9 Vict. c. 10. s. 3; but the notice was not served on the respondent till the 22nd of June. On the 29th the respondent's attorney undertook to admit due service of the notice. At the trial it was objected that the notice of recognizance was not served "forthwith,” pursuant to the statute; but the Quarter Sessions overruled the objection, and quashed the order. This Court refused a certiorari to bring up the order of Quarter Sessions to be quashed, on the ground that the admission was evidence that the notice had been served in time. Regina v. Justices of Gloucestershire, 16 Law J. Rep. (N.S.) M.C. 57. Upon an appeal against an order in bastardy being called on for hearing, and proof required of the appellants having complied with the requisitions of the 8 & 9 Vict. c. 10. s. 3, it appeared that the necessary recognizance had been entered into by the appellants, and notice thereof sent to the mother of the bastard child by the post, addressed to the place at which she resided when the order was made; but, on the part of the respondents, it was proved that when the notice was so sent by the post the mother was dead. The Sessions having refused to hear the appeal, on the ground that the statute had not been sufficiently complied with in respect of the sending of such notice,-Held, that the appellant was to be excused for the default occasioned by the death, the duty of sending the notice being one cast upon him by law, and its performance becoming impossible by the act of God; and therefore that the Sessions were bound to hear the appeal. Regina v. Justices of Leicestershire, 19 Law J. Rep. (N.s.) M.C. 209; 15 Q.B. Rep. 88. (E) BOND OF INDEMNITY TO PARISH. [Under 54 Geo. 3. c. 170.] In debt on a bastardy bond the breach was, that defendant suffered and permitted the child to be maintained at the expense of the parish. Plea, that after the child had passed the age of nurture, and while under the controul of the overseers, defendant was able and willing to maintain the child, and requested the overseers to deliver the child over to him, whereby he might have been maintained without being chargeable to the parish, which the plaintiffs (the overseers) refused to do, and maintained the child at the expense of the parish of their own wrong:-Held, (after verdict) that the plea was a good answer to the action without an allegation that the child was willing to go to the defendant to be maintained. Bownes v. Marsh, 16 Law J. Rep. (N.S.) Q.B. 443; 10 Q.B. Rep. 787. [See STAMP.] BATHS AND WASHHOUSES. Public Baths and Washhouses established by 9 & 10 Vict. c. 74; 24 Law J. Stat. 187. The 9 & 10 Vict. c. 74. amended by 10 & 11 Vict. c. 61; 25 Law J. Stat. 200. BATTERSEA PARK ACT. [See MANDAMUS-PROHIBITION]. BEER AND BEERHOUSE. Sale of beer on the Lord's Day regulated by 11 & 12 Vict. c. 49; 26 Law J. Stat. 158. A conviction under 11 Geo. 4. & 1 Will. 4. c. 64. and 4 & 5 Will. 4. c. 85. stated that W, of the parish of Ashford, in the county of K, was convicted by two Justices in and for the county of K, acting in petty sessions in and for the division of Ashford, in the said county, for that he, being a seller of beer licensed to sell the same by retail to be consumed on the premises, under the provisions of the statutes made and provided, did at the parish of Ashford aforesaid, permit drunkenness and other disorderly conduct in the house mentioned in such licence, and situate in the said parish of Ashford, against the tenour of such licence granted under the provisions of the said statutes, and contrary to the form of the said statutes, whereby the said Ŵ had forfeited 10., this being adjudged to be his second offence against the provisions of the aforesaid statutes to permit the general sale of beer, &c. by retail in England; and the Justices thereby awarded one moiety of the penalty, after deducting the costs of the conviction, to the informer, and the other moiety, after deducting the costs as aforesaid, to the treasurer of the county:-Held, first, that the conviction need not be by two Justices of the division within which the licensed house was situate, but that if it were necessary, it appeared from the conviction that they were so. Secondly, that it was unnecessary to allege that the conviction took place within three calendar months after the offence. Thirdly, that the offence was properly stated to be contrary to the form of the statutes. Fourthly, that the conviction need not state the names of the persons permitted to be drunk or allege that they were unknown. Fifthly, that the offence charged to have been committed was not double. Sixthly, that it was unnecessary to set out the licence in the conviction. Seventhly, that the conviction was not bad for not ascertaining the costs. Lastly, that the conviction need not be on parchment. Wray v. Toke, 17 Law J. Rep. (N.s.) M.C. 183; 12 Q.B. Rep. 492. An overseer is not compellable to grant a certificate that a person is the real resident holder and occupier of a house under the provisions of 3 & 4 Vict. c. 61. To a mandamus commanding the overseer to give such certificate to T H, he returned that he had no evidence that T H was the real resident holder and occupier, and that he had reason to believe that TH was not the real resident holder, &c., because he was rated jointly with T D. To this return there was a plea, that when the certificate was demanded, the defendant (the overseer) well knew that TH was the real holder and occupier. The jury having found a verdict for the Crown,-Held, on motion for a new trial, and in arrest of judgment, first, that defendant could not be made responsible on the facts as they appeared on the pleadings, if he judged wrong but honestly; secondly, that, at all events, the judgment ought to be arrested for insufficiency of the writ. Regina v. Kensington, 17 Law J. Rep. (N.S.) Q.B. 332; 12 Q.B. Rep. 654. BENEFIT BUILDING SOCIETIES. [See FRIENDLY AND BENEFIT SOCIETIES.] BIGAMY. [See MARRIAGE, Validity of.] [Murray v. Regina, 5 Law J. Dig. 135; 7 Q.B. Rep. 700.] EVIDENCE OF FIRST MARRIAGE. (a) Where solemnized in a Chapel. (b) Where solemnized under 6 & 7 Will. 4. c. 85. (c) By Prisoner's Confession. (a) Where solemnized in a Chapel. In a case of bigamy, where the first marriage was solemnized in a chapel, it is necessary to shew either that the chapel was one in which banns had been usually published before the stat. 26 Geo. 3. c. 33, or that the chapel was built and consecrated after that act, and before the stat. 6 Geo. 4. c. 92; and proof that marriages have been solemnized there for the last twenty years is not sufficient for this purpose. Regina v. Bowen, 2 Car. & K. 227. (b) Where solemnized under 6 & 7 Will. 4. c. 85. In an indictment for bigamy, where the first marriage was solemnized under 6 & 7 Will. 4. c. 85, the certificate authorized by that act and 6 & 7 Will. 4. c. 86. s. 38, coupled with the identity of the parties is sufficient prima facie evidence of such marriage. Regina v. Hawes, 1 Den. C.C. 270. (c) By Prisoner's Confession. In a case of bigamy there ought to be some proof of the first marriage beyond the mere statements of the prisoner while in custody; therefore, where a man went to a police station and stated that he had committed bigamy, and when and where the first marriage took place, and while in custody signed a statement to the same effect, the Judge thought this, though some evidence of the first marriage, insufficient, and so told the jury. Regina v. Flaherty, 2 Car. & K. 782. BILL OF EXCEPTIONS. [See EVIDENCE-JUDGMENT, Nunc pro tuncWRIT OF ERROR.] (A) FORM AND REQUISITES. (B) WHEN IT LIES. (C) SEALING. (A) FORM AND REQUISITES. A bill of exceptions to the direction of a Judge must set out in terms what the Judge's direction was: it is not sufficient to state that the counsel requested the Judge to leave certain questions to the jury, and that he refused to do so. M'Alpine v. Mangnall, 15 Law J. Rep. (N.S.) C.P. 298; 3 Com. B. Rep. 496. A court of error cannot look beyond the bill of exceptions, but must decide on that alone. Bain v. Whitehaven and Furness Junction Rail. Co., 3 H. L. Cas. 1. (B) WHEN IT LIES. Quare-Whether a bill of exceptions lies for misdirection of a Judge on the execution of a writ of inquiry. Price v. Green, 16 Law J. Rep. (N.S.) Exch. 108; 16 Mee. & W. 346. If a Judge at the trial leaves as a fact for the jury to determine any matter which he should decide as a point of law, the counsel should interpose and tender a bill of exceptions; otherwise, if in the opinion of the Court the jury decide the question left to them correctly in point of law, the Judge's misdirection is no ground for a new trial. Doe d. Strickland v. Strickland, 19 Law J. Rep. (N.s.) C.P. 89; 8 Com. B. Rep. 724. (C) SEALING. Where a bill of exceptions had been tendered, and before it was sealed the Judge died, the Court allowed a motion for a new trial, although more (a) By Appropriation of Monies received by (b) Notes payable at particular Place. (K) DISCHARGE OF LIABILITY ON. (b) By giving Security. (c) Of Acceptor by Payment of Drawer. (L) NOTICE OF DISHONOUR. (e) Enures to the Benefit of antecedent Parties. (M) REMITTING BILLS [CUSTOM AS TO]. (a) Against Maker and Indorser jointly. (c) Recovery of Interest where Bill not pro- (d) Effect of collateral Agreements and conditional Delivery. |