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4 & 5 W. 4. c. 76.

bility and

punishment of putative father, and punishment of mother of illegitimate children.

Securities and recognizances for indemnity of parishes against children likely to be born bastards to

be null and void.

Persons in custody for not giving indemnity to be discharged.

Mother of illegitimate children bound to maintain the same.

Court of quarter sessions, on application of overseers, &c. may make an order on puta

any child of which she shall then be pregnant, or as renders any person so charged liable to be apprehended or committed, or required to give security on any such charge, or as enables the mother of any bastard child or children to charge or affiliate any such child or children on any person as the reputed or putative father thereof, or as enables any overseer or guardian to charge or make complaint against any person as such reputed or putative father, and to require him to be charged with or contribute to the expenses attending the birth, sustentation, or maintenance of any such child or children, or to be imprisoned or otherwise punished for not contributing thereto, or as in any way renders such reputed or putative father liable to punishment or contribution as such, or as enables churchwardens and overseers, by the order of any two justices of the peace, confirmed by the sessions, to take, seize, and dispose of the goods and chattels, or to receive the annual rents or profits of the lands of any putative father of bastard children; and so much of any such act or acts as renders an unmarried woman with child liable as such to be summoned, examined, or removed, or as renders the mother of any bastard liable as such to be imprisoned or otherwise punished, shall, so far as respects any child which shall be likely to be born or shall be born a bastard after the passing of this act, or the mother or pu tative father of such child, be and the same is hereby repealed."

§ 70. "Every security given or recognizance entered into by any person or persons, or his or their surety, before the passing of this act, to indemnify any parish or place as to any child or children likely to be born a bastard or bastards, whereof any single woman shall be pregnant at the time of the passing of this act, or to abide and perform such order or orders as might have been made touching such child or children, pursuant to an act made and passed in the eighteenth year of the reign of her said late majesty queen Elizabeth, concerning bastards begotten and born out of lawful matrimony, shall be and the same are hereby declared null and void; and every person who shall at the time of the passing this act be in custody upon the commitment of any justice or justices for not having given such security or entered into such recognizance, shall be discharged (upon the application of such person) by any one of the visiting justices of the gaol in which such person shall be in custody under any such commitment."

of six

$71. "Every child which shall be born a bastard after the passing of this act, shall have and follow the settlement of the mother of such child until such child shall attain the age teen, or shall acquire a settlement in its own right, and such mother, so long as she shall be unmarried or a widow, shall be bound to maintain such child as a part of her family until such child shall attain the age of sixteen; and all relief granted to such child while under the age of sixteen shall be considered as granted to such mother: Provided always, that such liability of such mother as aforesaid shall cease on the marriage of such child, if a female."

§ 72. It is enacted, "That when any child shall hereafter be born a bastard, and shall, by reason of the inability of the mother of such child to provide for its maintenance, become chargeable to any parish, the overseers or guardians of such parish, or the guardians of any union in which such parish may be situate, may,

4 & 5 W. 4.

tive father of

child for its

support.

if they think proper, after diligent inquiry as to the father of such child, apply to the next general quarter sessions of the peace c. 76. within the jurisdiction of which such parish or union shall be situate, after such child shall have become chargeable, for an order upon the person whom they shall charge with being the putative father of such child, to reimburse such parish or union for its maintenance and support; and the court to which such application shall be made shall proceed to hear evidence thereon, and if it shall be satisfied, after hearing both parties, that the person so charged is really and in truth the father of such child, it shall make such order (a) upon such person in that respect as to such court shall appear to be just and reasonable under all the circumstances of the case: Provided always, that no such order shall be made unless the evidence of the mother of such bastard child shall be corroborated in some material particular by other testimony to the satisfaction of such court: Provided also, that such order shall in no case exceed the actual expense incurred or to be incurred for the maintenance and support of such bastard child while so chargeable, and shall continue in force only until such child shall attain the age of seven years, if he shall so long live Provided also, that no part of the monies paid by such pu- Monies paid tative father in pursuance of such order shall at any time be paid not applicable to the mother of such bastard child, nor in any way be applied to support of to the maintenance and support of such mother." § 73. "No such application shall be heard at such sessions unless fourteen days' notice (b) shall have been given under the hands of such overseers or guardians to the person intended to be charged with being the father of such child of such intended application; and in case there shall not, previously to such sessions, have been sufficient time to give such notice, the hearing of such application shall be deferred to the next ensuing general quarter sessions: Provided always, that whenever such application shall be heard, the costs of the maintenance of such bastard child shall, in case the court shall think fit to make an order thereon, be calculated from the birth of such bastard child, if such birth shall have taken place within six calendar months previous to such application being heard; but if such birth shall have taken place more than six calendar months previously to such application being heard, then from the day of the com

(a) See form of order, post, p. 388.

day of

last

day of

(b) The following may be the Form of Notice: Whereas Ann Styles, single woman, was on the delivered of a male bastard child; and the said child, on the last, by reason of its said mother being unable to provide for its maintenance, became chargeable to the parish of · - and from thence hitherto has been maintained and supported by the said parish: And whereas we the undersigned, being the overseers of the poor of the said parish, [or, the guardians of the poor of the said parish, or, the guardians of the union in which such parish is situate,] have made diligent inquiry as to the father of the said child, and find that you, John Nokes, are the father of the same: therefore take notice, that at the next general quarter sessions of the peace, to be holden for the county of · -, within which such parish is situate, we, as such overseers of the poor of the said parish, intend to make application to the court at the said sessions, for an order upon you, John Nokes, to reimburse the said parish for the maintenance and support of the said child. Given under our hands this To John Nokes of

Labourer.

day of

[See Archbold's Poor Law Amendment Act, p.24.]

1835.

A. B. f Overseers of the said
C. D. parish of ·

mother.

No application to be heard without 14 days previous notice.

If application

be heard, costs may be calcu

lated from birth of bastard child,

if within six months.

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mencement of six calendar months next preceding the hearing of such application: Provided also, that if upon the hearing of such application the court shall not think fit to make any order thereon, it shall order and direct that the full costs and charges incurred by the person so intended to be charged in resisting such appli cation shall be paid by such overseers or guardians."

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§74. "If such person so intended to be charged shall not appear by himself or his attorney at the time when such appli cation shall come on to be heard before such court, according to such notice, such court shall nevertheless proceed to hear the same, unless such overseers or guardians shall produce an agree ment under the hand of such person to abide by such order as such court shall make thereon without the hearing of evidence by such court: Provided always, that such court may, notwith standing such agreement, require that evidence shall be given in support of such application, if it thinks fit, before such order is made."

$75. "Whenever such overseers or guardians shall have determined to make such application as aforesaid, it shall be lawful for one justice of the peace, at the request of such overseers or guardians, to summon (a) the person so intended to be charged with being the father of such bastard child to appear before him; and if such justice shall be satisfied that such person has any intention to abscond or keep out of the way, in order to avoid the consequences of such application, such justice may require such person to enter into a recognizance (b) to appear and answer thereto, and in case such person shall refuse or neglect to enter into such recognizance, may commit (c) such person to the gaol or house of correction of the county, riding, or division within which such parish shall be situate, until he shall enter into such recognizance, or until such application shall be heard."

§ 76. "If at any time after the expiration of one calendar month after an order shall have been made in pursuance of such application, it shall appear to one justice, upon the oath of any one of such overseers or guardians, that the payments directed to be made by such order have not been made according thereto, and are in arrear (d), it shall be lawful for such justice or any other justice, by warrant under his hand and seal, to cause such putative father of such bastard child to be brought before two justices of the peace; and in case such putative father shall refuse or neglect to make payment of such sum of money as shall appear to such justices to be due from him under such order, together with the costs of apprehension, it shall be lawful for such or any two jus tices to proceed to recover such sum and costs by distress (e) and sale of the goods and chattels of such putative father, or by attaching the wages of such putative father for the recovery of such sum and costs, in the same manner as wages may be attached under the provisions of this act."

By 103., among other instances of appeal, it is provided, that any person aggrieved by any order made on him under this act as the putative father of a bastard, may appeal to the quarter sessions

(a) See form of summons, post, p.383.
(b) See form of recognizance, post, p.384.
(c) See form of commitment, post, p.384.
(d) See form of warrant, post, p. 396.

(e) See form of warrant of distress, post, p.397.

within four calendar months of the cause of complaint, &c. (See this section fully stated, tit. Poor.) But, it appears, the clause to which this provision was applicable was expunged in the house of lords by the committee, and this has been allowed to remain in the act by mistake. It cannot be deemed to have reference to the order to be made on the putative father, under the 72d section, because that order must be made by the sessions; and an appeal from the sessions to the sessions would be absurd. Archb. Poor Law Act, 140., note (82.)

[For other general enactments of the same statute, relating in some measure to the above sections, see tit. Poor.]

The above provisions of the Poor Law Amendment Act are confined entirely to cases where the bastard is born after the passing of the act (14th August 1834). As to bastards born before, the law still remains wholly unaltered. It seems, therefore, impracticable to avoid the consideration of it, as fully, almost, as if the stat. 4 & 5 W. 4. c. 76. had never passed.

(1.) Order by Two Justices, or by the Sessions.

(2.) Of the Form of the Order, and Commitment thereon. (3.) Of the Appeal against the Order.

(1.) Df the Drder by Two Justices, or by the Sessions.

If security hath not been given to indemnify the parish, the next thing in the course of proceeding is the order of filiation and

maintenance.

By stat. 18 El. c. 3. §2., "Concerning bastards begotten and 18 El. c. 3. born out of lawful matrimony (an offence against God's law and man's law), the said bastards being now left to be kept at the charges of the parish where they be born, to the great burthen of the same parish, and in defrauding of the relief of the impotent and aged true poor of the same parish, and to the evil example and encouragement of lewd life;" it is ordained and enacted, "that Order by two two justices of the peace (whereof one to be of the quorum) justices. in or next unto the limits where the parish church is, within which parish such bastard shall be born (upon examination of the cause and circumstance) (Q.), shall and may by their discretion take order (R.), as well for the punishment of the mother and reputed father of such bastard child, as also for the better relief of every such parish in part or in all; and shall and may likewise by like discretion take order for the keeping of every such bastard child, by charging such mother or reputed father with the payment of money weekly, or other sustentation for the relief of such child, in such wise as they shall think meet and convenient; and if after the same order by them subscribed under their hands, any of the said persons, viz. mother or reputed father, upon notice thereof, shall not for their part observe and perform the said order, that then every such party so making (V.W.X.) default in not performing of the said order, to be committed to ward to the common gaol, there to remain Commitment without bail or mainprize, except he, she, or they shall put in suf- excepting upon ficient surety to perform the said order, or else personally to security given appear at the next general sessions of the peace, to be holden in to perform it or that county where such order shall be taken, and also to abide abide the order such order as the said justices of the peace, or the more part of them, then and there shall take in that behalf (if they then and there shall take any); and that if at the said sessions the said

After order made and de

fault.

made at the

next sessions.

3 C. 1. c. 4. Order by the sessions.

49 G. 3. c. 68.

Reputed fathers of bastard chil

dren shall be chargeable with

the expenses incident to the

birth, with the costs of apprehending, and of

the order of filiation.

If reputed father or mother refuse to pay sums or

dered for maintenance, &c.

justices shall take no other order, then to abide and perform the order before made, as is aforesaid."

By stat. 3 C. 1 c. 4. § 15., all justices of the peace within their several limits and precincts, and in their several sessions, may do and execute all things concerning that part of the said statute (viz. stat. 18 El. c. 3.) that by justices of the peace in the several counties are by the said statute limited to be done. (a)

And by stat. 49 G. 3. c. 68. § 1., after reciting that the provisions of the 18 Eliz. are found to be inadequate to the purposes of indemnifying parishes against the charges and expenses incurred by the apprehending and securing the reputed father, and also by the obtaining the order of filiation; and that it is expedient that such charges and expenses should be borne and dicharged by the adjudged reputed father of such bastard child or children, at the discretion of the justices by whom such adju dication shall be made, either in the court of quarter sessions or otherwise, not exceeding the amount herein-after mentioned: it is enacted, "That every person, who shall hereafter be adjudged to be the reputed father of any bastard child or children, shall be chargeable with and liable to the payment of all reasonable charges and expenses incident to the birth of such bastard child or children, and also to the payment of the reasonable costs of apprehending and securing such reputed father, and also to the payment of the costs of the order of filiation (V.W.X.), such costs of apprehending and securing the reputed father, and of the order of filiation, not to exceed the sum of 10%.; and all such charges, expenses, and costs (S.) shall be duly and respectively ascer tained on oath before the justices of the peace or the court of quarter sessions making such order of filiation, which oath such justices or court are hereby respectively empowered to

administer."

By § 3., after reciting that "whereas parishes are often put to great expense in enforcing the performance of orders of maintenance made on the filiation of bastard children; it is enacted, that if any reputed father, or any mother of such bastard child or children on whom any order of filiation or maintenance of such justice shall, on child or children shall have been made by the court of quarter complaint of sessions, or which shall have been made by two justices of the overseer, issue peace, and confirmed by the court of quarter sessions, or against warrant, and which no appeal shall have been made to the court of quarter sessions, shall neglect or refuse to pay any sum or sums of money rection for three which he or she shall have been ordered to pay towards the maintenance or other sustentation for the relief of any such bastard child or children by any such order, it shall be lawful for any justice of the peace of the county, riding, division, city, liberty, or town corporate in which such reputed father or such mother shall happen to be, and the said justice is hereby required upon complaint (Y.) made to him by any one of the overseers of the

commit to the house of cor

months unless

the money be sooner paid.

Original jurisdiction of sessions.

(a) Upon this statute there has been great diversity of opinion, whether or no the sessions have power thereby to make an original order (T.) in the case of bastardy, without the matter coming before them by way of appeal. But seems now to be fully settled, that the sessions have power to make an original order. Vid. Slater's case, Cro. Car. 470. R. v. Greaves, Doug. 632. 1 Butt, 509., in which case the original jurisdiction of the sessions to make orders in bastardy was recognized, and several cases cited to shew that the statute gives such jurisdiction.

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