pose of proving it: and they accordingly quashed the order of sessions. R. v. Sourton, 5 Ad. & El. 180. And where a married woman proved that her husband and she had lived separate many years, that she had married another man, after which she had two children (the paupers,) and that her first husband cohabited with another woman; the court held that all this did not amount to evidence of non-access, and the paupers must therefore be deemed to be the legitimate children of the first husband. R. v. Mansfield, 1 Q. B. 444. Either husband or wife, however, may prove that the child was born before marriage; Goodright v. Moss, Corp. 591; but their declarations to that effect, even after their death, though receivable in questions of pedigree, Id., are no evidence whatever in settleR. v. Erith, 8 East, 539.

ment cases.

2. Settlement of Bastards.

A bastard born before the 14 August, 1834, is settled in the parish or township in which it was born; R. v. Spitalfields, 1 Ld. Raym. 567. R. v. Astley, 2 Bott, 10; unless it were born of a mother who was at the time actually confined within the walls of a prison, or in a house duly licensed for the reception of pregnant women. 54 G. 3, c. 170, s. 2. And if born in an extraparochial place, it had no place of settlement, either by birth or parentage. R. v. St. Nicholas, Leicester, 2 B. & C. 889. R. v. Mattersey, 4 B. & Ad. 211, and see R. v. Wilson, 2 Ad. & El. 230. Even where a pauper was born at Oakmere, at a time when it was extraparochial and no overseer appointed; afterwards it was made a township by act of parliament, and overseers appointed for it; and the pauper becoming chargeable was removed to it: the court held that he could not be removed to it as the place of his settlement, for it was no township at the time of his birth, and the statute had not the effect of conferring any settlement upon him. R. v. Oakmere, 5 B. & A. 577. But if the bastard were born in a house of industry or poor house of an incorporated district, or which was locally situate out of the parish, &c. by which the mother was sent, then the child was deemed to be settled in the parish, &c. by which the mother was sent, or on whose account the mother was received or maintained in the house. 54 G. 3, c. 170, 8. 3. So, if an order for the removal of an unmarried woman, pregnant, were suspended, and during the suspension she was delivered of a bastard, the child would be settled, not in the parish where it was born, but in the parish in which the mother was settled at the time of her delivery. 35 G. 3, c. 101, s. 6. So, if a woman, pregnant of a bastard, were, by the fraud or collusion of the parish officers, (and not merely of the putative father or the like, R. v. Mattersey, 4 B. & Ad. 211, and see R. v. Wilson, 2 Ad.

& E. 230,) sent from one parish to be delivered in another, and she were delivered in the latter parish accordingly, the child would be deemed to be settled in the parish from which the mother was sent. Tewkesbury v. Twining, 2 Bulst. 349. Masters v. Child, 3 Salk. 66. So, if, after a regular order obtained for the removal of a woman, pregnant of a bastard, the child were born before the mother could be removed; R. v. Icleford, 1 Sess. Ca. 32; or whilst the mother was removing: Jane Grey's Case, Set. & Rem. 66: the child would be settled in the parish to which the mother was about to be removed. Or if the mother were actually removed, but the removal were wrongful, and the order were afterwards quashed upon appeal, her child, born in the parish to which she was removed, either before or pending the appeal, would be deemed to be settled in the parish by which she was removed, Westbury v. Coston, 2 Salk. 532. Boreham v. Waltham, Carth. 397. Much Waltham v. Peram, 2 Salk. 474, even although that were not in fact the place of the mother's settlement. R. v. Great Salkeld, 6 M. & S. 408. R. v. Martlesham, 10 B. & C. 77. R. v. St. Andrew, Holborn, 6 M. & S. 411. If, however, after removal, the mother were secretly to return to the removing parish, and there be delivered of the bastard, the child would be settled where born. R. v. Halifax, 2 B. & Ad. 211.

As to bastards born after the 14th August, 1834, it is enacted by stat. 4 & 5 W. 4, c. 76, s. 71, that every such bastard “shall have and follow the settlement of the mother of such child, until such child shall attain the age of 16 years, or shall acquire a settlement in its own right." This enactment may in some years hence give rise to a question, whether the mother's settlement at the time the child attains the age of 16 years, shall be his settlement afterwards until he acquire one in his own right, or whether he shall have and follow the settlement of his mother only until he is 16 years of age, and then revert to his birth settlement. It has been decided that if the mother marry before that time, the child acquires the settlement of the mother's husband. R. v. St. Mary, Newington, 12 Law J. 68, m. 4 Q. B. 581.

3. Who is liable to maintain it.

As to bastards born since the 14th August, 1834, it is enacted by stat. 4 & 5 W. 4, c. 76, s. 71, that the "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 16; and all relief granted to such child, while under the age of 16, 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." The mother however may apply for and obtain an order of filiation against the putative father, as shall be noticed presently, and thereby compel him to contribute to its maintenance.

As to bastards born before the 14th August, 1834, there is no statutable provision for their maintenance, so long as the mother remains unmarried, except such orders of filiation made before that time, under the old statutes, 18 El. c. 3, s. 2, and 49 G. 3, c. 68, s. 3, which may happen still to be in force; and these will cease to be in force on the 1st January, 1849. 7 & 8 Vict. c. 101, s. 9.

But if the mother marry, the husband shall be liable to maintain any child or children she may have at the time of her marriage, whether legitimate or illegitimate, as a part of his family, and shall be chargeable with all relief or the cost price thereof, granted to or on account of such child or children, until the child or children attain the age of 16, or the mother die. 4 & 5 W. 4, c. 76, s. 57. And where an order of filiation was made upon the putative father of a bastard child, before this statute, and the mother afterwards married a man who was able to maintain it, the court of Exchequer held that the marriage of the mother relieved the putative father from his liability; and Parke, B. intimated an opinion that the affirmative words of the section amounted to a repeal of the former statutes relating to bastardy, and destroyed altogether the effect of the order of filiation, during the marriage of the mother. Lang v. Spicer, 1 Mees. & W. 129. But see stat. 7 & 8 Vict. c. 101, s. 9, supra.

4. ORDER OF FILIATION.

1. Statutes upon the subject.

Formerly, by stat. 18 Eliz. c. 3, when a bastard was born in a parish, two justices might "take order, as well for the punishment of the mother and reputed father, as also for the better relief of such parish, in part or in all;" and also might '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 ways as they should think fit or convenient. In pursuance of this statute, two justices, upon complaint of the churchwardens and overseers of the poor of the parish, summoned the putative father; and if it were proved that he was the father of the child, they made an order upon him for

such sum as the overseers had already expended for the delivery of the mother and maintenance of the child, and for a certain weekly sum for the maintenance of the child, as long as it should be chargeable; sometimes also they made an order on the mother, for payment of a weekly sum, for the same purpose. By stat. 7 Jac. 1, c. 3, also, the woman might be committed for one month to the house of correction, there to be imprisoned and kept to hard labour. By stat. 6 G. 2, c. 31, the woman might be examined on oath before two justices whilst she was yet pregnant, as to the person by whom she was pregnant, and upon that being disclosed, the justices might issue a warrant to apprehend him, and bring him before them, to find sureties either to indemnify the parish, or for his appearance at the sessions to abide the order of that court; and if he refused to find sureties, he was committed to the house of correction; but if no order of filiation were made within six weeks after the woman was delivered, then he was discharged.

These statutes however were repealed by stat. 4 & 5 W. 4, c. 76, by which it was enacted that thereafter, if a bastard child, by reason of the inability of its mother to provide for its maintenance, should become chargeable to a parish or township, the overseers, on giving notice to the putative father, might apply to the court of quarter sessions for an order on the putative father for payment of any sum they might then have expended, and a weekly sum afterwards, for the maintenance of the child, until it should attain the age of seven years. Some alteration was afterwards made in this mode of proceeding by stat. 2 & 3 Vict. c. 85, namely, that if the parish were in an union or under guardians, the application for the order should be by the guardians and not by the overseers, and that the application was to be to the petty sessions, unless the putative father should elect to have the matter heard and decided by the sessions.

But now, by stat. 7 & 8 Vict. c. 101, s. 1, after reciting the above provisions of stat. 4 & 5 W. 4, c. 76, it is enacted that after the passing of that Act (9 August, 1844) all powers for obtaining or making an order upon any putative father, for the maintenance of a bastard child, shall cease and determine, "except as hereinafter provided." The Act then proceeds to make the following provisions upon the subject.

"Any single woman who may be with child, or who may be delivered of a bastard child, after the passing of this Act, or who has been delivered of a bastard child within the period of six calendar months before the passing of this Act, may, either before the birth, or at any time within twelve months from the birth of such child, or at any time thereafter, upon proof that the man alleged to be the father of such child has within the twelve months next after the birth of such child

paid money for its maintenance, make application to any one justice of the peace acting for the petty sessional division of the county, or for the city, borough, or place, in which she may reside, for a summons to be served on the man alleged by her to be the father of such child; and if such application be made before the birth of the child, the woman shall make a deposition upon oath stating who is the father of such child, and such justice of the peace shall thereupon issue his summons to the person, alleged to be the father of such child, to appear at a petty session to be holden after the expiration of six days at least for the petty sessional division, city, borough, or other place in which such justice usually acts." 7 & 8 Vict. c. 101, s. 2.

"After the birth of such bastard child, on the appearance of the person so summoned, or on proof that the summons was duly served on such person, or left at his last place of abode six days at least before the petty session, the justices in such petty session shall hear the evidence of such woman, and such other evidence as she may produce, and shall also hear any evidence tendered by or on behalf of the person alleged to be the father; and if the evidence of the mother be corroborated in some material particular by other testimony to the satisfaction of the said justices, they may adjudge the man to be the putative father of such bastard child; and they may also, if they see fit, having regard to all the circumstances of the case, proceed to make an order on the putative father for the payment to the mother of the bastard child, or to any person who may be appointed to have the custody of such child under the provisions of this Act, of a sum of money weekly, and of such costs as may have been incurred in the obtaining of such order, including, if they think proper, ten shillings for the midwife, and ten shillings towards the funeral expenses of the child, provided it have died before the making of such order: and if the application be made before the birth of the child, or within two calendar months after the birth of the child, such weekly sum may, if the said justices think fit, be calculated from the birth of the child, at a rate not exceeding five shillings per week for the first six weeks after the birth of such child; and in other cases such sum shall not exceed two shillings and sixpence per week from the time of the making of the application: and if at any time after the expiration of one calendar month from the making of such order as aforesaid it be made to appear to any one justice, upon oath or affirmation, that any sum to be paid in pursuance of such order has not been paid, such justice may, by warrant under his hand and seal, cause such putative father to be brought before any two justices; and in case such putative father neglect or refuse to make payment of the sums due from him under such order, or since any commitment for disobedience