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or court of

18 Eliz. c. 3.

49 G. 3. c. 68. $ 4. provides and enacts, “ That all such charges, expenses,

and costs shall be wholly subject to the discretion of the justices Expenses and costs subject to

or court of quarter sessions who shall make such order of filiation; the discretion and the justices or court of quarter sessions are hereby authorized, and allowance if they shall see fit, to allow and order payment of the whole or of magistrates, any part thereof: Provided always, that the costs of apprehend

ing and securing the reputed father, and of the order of filiation, quarter sessions, as the

shall not in any case exceed the sum of 101.; and for securing case may be. the due payment of the same, after such allowance and order as

aforesaid, all and every the powers, authorities, provisions, clauses, matters, and things contained in the said act passed in the eighteenth year of the reign of queen Elizabeth, concerning bastards begotten and born out of lawful matrimony, shall be respectively observed, used, and practised in the execution of this act, and shall be construed, deemed, and taken to apply as fully and effectually, to all intents and purposes, as if the said powers, authorities, provisions, clauses, matters, and things were specially recited and re-enacted in this act.” (V. W. X.)

The said bastards being now left to be kept at the charges of the antè, p. 349. parish where they be born.] For at that time they could have no

other settlement. There were only two kinds of settlements then existing ; the one was by birth, and the other where the person should have resided for the most part during the space of three years. So that till the child should be three years of age, it could possibly have no other settlement. And the place of birth continues to be the settlement of bastard children still, unless in some few excepted cases. (But see stat. 4 & 5 W. 4. c. 76. $ 71.

Vol. IV. tit. Poor.) Two next

Two justices in or next unto the limits where the parish church justices.

is.] By the case of Rex v. Skinn, E. 15 G. 2., 1 Bott, 527., it appears that the words, “ in or next unto the limits,are only directory, and that an order of maintenance by two justices not “in or next unto the limits where the parish church is,” is valid. If, therefore, “two justices cannot agree in the order, or shall make no order," it should seem that in the one case a justice not being “ the next,” may join with either of the other in making the order, and in the other case, recourse might be had to two other

justices, being as near the limits as such could be procured. Child born in If the child be born in an extra-parochial place, the two justices extra-parochial have no authority, it seems, to make an order of bastardy. Res place.

v. Baker, 1 Bott, 528. (a)

Shall and may by their discretion.] Here is no time limited for be made at any their proceeding in this matter: so that the order may be made time after the birth.

at any time after the birth of the child.

And in the case of Rex v. Miles, 1 Sess. Cas. 77. i Bott, 512, on motion to quash an order of bastardy, it was resolved, that if the party of that advantage, The difference is a most material one, and it gives the party commited a right of action against the magistrate. (See the other point

decided in this case, post, tit. 3 ustices.) Where the time

Er parle Addis, M. 1822, 1 B. & C. 87. Where an order of filiation is made, for appeal is and the time for appeal is past, it cannot be enforced by commitment under stat

, past, the com- 18 Eliz

. c. 3. for refusal to comply with it, but the magistrate must proceed mitment must

under stat. 49 G. 3. c. 68. $ 3. by commitment for three months; this being the be under third case mentioned in stat. 49 G. 3. c.68. $ 3. viz. “ an order against which nə 49 G. 3. appeal has been made." (See this case more fully stated, post, p. 355.)

(a) This does not apply to a hamlet maintaining its own poor. Rer v. 14ford, 1 Bott, 581.

An order may

the father run away and return, though fourteen years after, yet an order to fix the child on him is good; for there is no statute of limitation in these cases.

By stat. 6 G. 2. c. 31. $ 3. (antè, p. 331.) if the reputed father 6 G. 2. c. 31. be in prison, and no order be made in six weeks after the birth of the child, he may in such case be discharged from his imprisonment; but the order nevertheless made upon him afterwards will be good.

Take order.] Herein they must proceed as in all other like 18 Eliz. c. 3. cases, by giving the party accused an opportunity of being heard antè, p. 349. in his defence. In the case of Rex v. Gotten, 1 Sess. Cas. 179.,

Reputed father

must be suman information was moved for against the defendant, who with moned. another justice made an order of bastardy upon one Fitzgerald, without summoning him to appear before them to make his defence. Upon appeal to the sessions he was acquitted, and put to great expenses; which it was insisted was contrary to natural justice.—By Mr. J. Page: No man in an office can be supposed to convict a to be so ignorant as not to know it is against natural justice to man without a convict a man without a summons: the examination ought to be summons is so made that the truth may appear: and this must be by examining justice.

against natural both sides; otherwise it is partial. Here was no taking by warrant, and therefore an action of false imprisonment would not lie; and this is the only method that can be used to punish the justice. -Mr.J. Probyn. The principal objection about a summons is right in law and in reason : possibly an action on the case might be framed: there may possibly have been only an error in judgment, and it is hard to grant an information. — Mr. J. Lee. If this were strictly a conviction against which no appeal lies, an information ought to be granted; but the matter is not so very strong in the case of orders. — And the rule was discharged.

That a summons by a third justice is sufficient, is decided in the Summons by a case of Rex v. Taylor and Neale, 2 Sess. Cas. 192. Cas. Temp. third justice is Hardw. 112.

sufficient. And although it is indispensable that the putative father should The order will be sumiponed to appear, previously to an order being made upon

be valid, though

the putative him, bis presence during the mother's examination before the justices out of sessions is not necessary to the validity of such order. Res v. Upton Gray, Cald. 308. 1 Bolt, 544.

examination. If the putative father, being summoned, will not attend himself, No defence there is no reason the justices should hear any witnesses or defence shall be made made for him. Rex v. Neal, i Bott, 552. But if a person charged for the putative with a bastard child is under any incapacity of attending by ill- father in bis ness or otherwise, the justices may, and ought to receive evidence absence, unless on his behalf, but not otherwise. It is the practice in B. R. not illness. to hear exceptions to an order of bastardy in the absence of the person charged, except under such circumstances as above mentioned. Rer v. Taylor and Neale, suprà, et Serjeant Hill's MSS. (See also post, p. 370, 371.)

By charging such mother.] Rer v. Ellen Taylor, late Bent, Mother marry3 Burr. 1681. 1 Bott, 532. She was delivered of a bastard ing before the child in the parish of Clifton. After which, and before any order order is made, made, she married one Abraham Taylor, of the parish of Middle- mitted for diston. The overseers of Clifton applied to the justices, who made obeying it. an order of filiation, charging her with 8d. a week towards the relief of the parish. She pleaded her utter inability, and refused

VOL. 1.

father be not

present at the

A A

to pay. Upon which the justices committed her to the house of correction. She was brought up by habeas corpus, and her counsel moved for her discharge, insisting upon the illegality of her commitment; for that, being married woman, she was not an object of the justices' jurisdiction, and the husband was not summoned.—But by the court: A feme covert is liable to be prosecuted for crimes committed by her. This woman has disobeyed the order of the justices, and the statute prescribes the punishment here inflicted upon her. There is no need to summon the

husband in a criminal prosecution against the wife. No order of

Where an order of bastardy stated, that, “ E. A., single woman, filiation, &c. can be made

on the 13th of September 1810, was delivered of a dead-born male unless the child bastard child,” Lord Ellenborough C. J. said, “All the provisions be born alive. in the several statutes assume the birth of a child, which must of

course be born alive.”—Grose J.“ No dead substance is the object of legislative provision in any of the acts."-Order quashed. Rer

v. De Brouquens, 14 East, 277. Whether the

With the payment of money weekly, or other sustentation.] That reputed father may take the

is, to the overseers for the use of such child. But whether the child.

overseers shall have the sole application of the money, and ordering of such child; or the reputed father may take the child from the parish, and provide for it himself, hath been doubted, and seemeth not yet to have been fully settled. Sed vid. post, p. 371.

and antè, p. 338. Justices cannot

Such party so making default in not performing the said order commit or require sureties,

to be committed.] Until default shall be made, the justices have till default is

no power to commit, or to require sureties for the performance of made :

the order, or for appearing at the sessions. Q. v. Chaffey, 2 Ld.

Raym. 858. 3 Salk. 66. 1 Barnard. 261. 1 Bott, 520. nor can the sej

The power of the sessions to make an order of filiation and sions.

maintenance is first given by 3 Car. 1. c. 4. & 15.: and that act gives the sessions the like powers to those conferred by the stat. 18 Eliz. to justices out of sessions.

Since, then, the justices out of sessions have no authority to require a recognizance, unless the party disobey the order of maintenance, therefore the sessions, although they have an original power to make an order of bastardy, cannot order the father to give security for the performance of that order, as appears by the case of Rer v. Fox, 1 Bott, 530., and Rex v. Price, 6 T. Å. 147. 1 Bott, 614. (a)

But if the sessions in such a case make an order of bastardy? and also order the putative father to give security for the performance of that order, the court of K. B. will quash the latter part, and confirm the former part of the order. Rer v. Price, 6 T. R. 147. and Rex v. Fox, there cited.

(a) In Q. v. Weston, 1 Salk. 122., Holt C. J. said, that the sessions may commit as the two justices might have done, unless the party put in surety to perform the order, or to appear at the next sessions, which implies an appeal from the same court to the same court, a thing not usual in other like cases, an appeal importing the removal of a cause from an inferior to a higher jurisdiction. Da the other hand, Ld. C. J. Pratt, in the case of R. v. Cleg, 1 Str. 475., said, that upon an original order at sessions, the party hath no opportunity to relieve him. self by way of appeal, and from hence urges the extreme necessity of a striet and regular summons of the reputed father, lest he happened to be condemned 18heard. 8 Mod. 4. S.C.

Where the sessions make an original order of filiation and maintenance, and such order is disobeyed, the party may be taken up and committed, unless he give security for performance pursuant to stat. 18 Eliz. c. 3. § 2. antè, p. 349.

Ex parte Addis, 1 B. & C. 87. In this case a rule was obtained Where an order to shew cause why a writ of habeas corpus should not issue, directed of bastardy has to the keeper of the gaol of the county of Leicester, to bring up the time for the body of Joseph Addis, for the purpose of discharging him out appeal past, of custody, on the ground that the warrant of commitment was it cannot be endefective. It appeared, that on the 4th of April 1822, two justices forced under made an order of filiation, which recited that complaint had been 18 Eliz c.2.; made to them by the overseers of S., as well on their oath, as on trate must prothat of A. S., late A. G., single woman ; that the said A. G. was ceed under delivered of a bastard child on the 29th November 1808, at the 49 G. 3. c. 68. said parish, and that the said child was chargeable to the said $ 3. by cornparish from that time till April 16th 1812; and that J. Addis did mitment for beget the said child ; and that the child, soon after the 29th No

three months. tember 1808, was filiated by the said A. G., and that the said J. Addis did then abscond. It then recited that the defendant was present on the 4th April 1822, before the justices, in pursuance of their warrant, who adjudged him to be the reputed father, and thereupon ordered bim to pay 8l. (being the expenses incident to the birth and the lying-in of the said A. G., and the costs of apprehending and securing him the said J. A., and of the order of filiation); and the further sum of 171. 10s., being after the rate of 2s. per week for three years and nineteen weeks, viz. up to the 6th of April 1812, on which day the bastard child died; which sum had been expended in the maintenance of the said bastard child. The justices, on the same day, in consequence of the defendant having refused to pay, or to find surety for the pay: ment of the sums mentioned in the order, commitied him until those sums should be duly paid, or until he should be otherwise delivered by due course of law. At the sessions held April 15th 1822, no appeal was entered against the order, but the sessions thought the commitment illegal on the face of it, and discharged the defendant. On the 8th September 1822, the defendant was again brought before the magistrates who had made the order, and they then committed him again to prison. The warrant of commitment recited the order of filiation; and that the defendant had not paid, or caused to be paid the said sums of 8l. and 171. 10s. and did still refuse so to do. And thereupon, they adjudged him to be guilty of the offence aforesaid, against the provisions of the 18 Eliz. c. 3., and therefore, under the directions of the aforesaid statute, committed him to ward in the common gaol there, to remain without bail or mainprize, except he should put in sufficient surety to perform the said order, or else personally to appear at the next general quarter sessions of the peace to be holden for the county of Leicester; and also to abide such order as the justices of the peace there assembled, or the more part of them, then and there should take in that behalf, &c. In moving for the rule nisi, two points were made. First, that the order of fliation recited in the warrant was bad, being for by-gone maintenance. Secondly, that the magistrates had no power to commit under the 18 Eliz. c. 3., but were bound to commit for three months under 49 G. 3. c. 68. & 3. On shewing cause, the first objection was

tenance.

given up. Marriott then shewed cause on the second objection. - Phillips contrà.- Per curiam. If the original order of filiation, dated 4th April, be valid, it is clear that the party could only get rid of it by an appeal, which he has not made. If so, then it is clear, that all the subsequent proceedings, in order to enforce the payment of the maintenance due by that order, must fall under the 49 G. 3. c. 68. § 3. If the original order be on the face of it invalid, then, whether appealed against or not, it cannot now be enforced. In either event the present commitment is bad. It has been contended, however, that it is good, as far as relates to the sum of 81. But if a man be committed for the non-payment of two sums, one of which is not due, the warrant of commitment is bad for the whole. The rule must, therefore, be made ab

solute. One who is de Rex v. Martyr and Fulham, 13 East, 55. This came on upon facto guardian a rule calling upon the defendants, justices of the peace for 'of the poor of an incorporated

the county of Surrey, to shew cause why a mandamus should district is com

not issue to them to take the examination of Martha Barnett, petent to apply a pauper of the parish of Dunsfold, in that county, touching in that character the reputed father of a bastard child of which she was pregnant ; to a justice for and also commanding them to issue their summons directed to a summons against a re

W. Foster of the same parish, to compel his appearance before puted father for them, to answer for having disobeyed an order of bastardy made not obeying an against him. The application was founded upon the affidavit order of main- of F. Sadler, stating, that in 1787, Dunsfold and other parishes

united to adopt the provisions of stat. 22 G.3. c.83. for the better relief and employment of the poor ; and that, under that act, he was duly appointed guardian of the poor for Dunsfold; that at a meeting of justices on the 16th of June last, he, as such guardian, attended with Martha Barnett to filiate the bastard child of which she was then pregnant, and informed the defendants then present, that he had agreed with the parish of Dunsfold to continue in the office of guardian for the year ensuing, and in that character required them to take her examination ; but they refused to take cognizance of the measure: that he also applied to them at the same time as such guardian for a summons against W. Foster, to appear before them for neglecting to obey an order of bastardy, which they also refused to issue.- The defendants in answer stated, that considering Sadler not to have been legally continued or ap: pointed guardian of the poor at the time, and that they could not regularly investigate any complaint of the kind not preferred by a regular parish officer, they refused to take the examination of Martha Barnett, for filiating her bastard, or to issue the summons to Foster for disobeying the order of bastardy. As to the summons, they contended that stat. 49 G. 3. c. 68. Š 3. was mandatory on the justice to issue his warrant to apprehend in the first in

stance, and not a summons only, which was applied for in this Though the case. The court did not hear counsel on the other side: but, by stat. 49 G. 3. Lord Ellenborough C. J.: The person making the application to directs the jus- the magistrates being guardian of the poor of Dunsfold de factor plaint and proof acting in that character, and recognized as such by the parish, and of disobedience no objection being made by the general overseers of the poor to to an order of this person making the complaint to the magistrates as against one maintenance, who usurped their authority, we do not think that the magistrates to issue his war- could enter upon such an occasion into the objection that he was

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