THE

LAW AND PRACTICE

OF

ORDERS OF AFFILIATION,

AND

Proceedings in Bastardy.

CHAPTER I.

OF MATTERS PRELIMINARY TO THE

HEARING.

THE jurisdiction of Justices of the Peace to make orders of affiliation, and the practice and proceedings connected with such orders, are now entirely governed by the four statutes of the 7 & 8 Vict. c. 101, the 8 Vict. c. 10, the 35 & 36 Vict. c. 65, and the 36 Vict. c. 9. Whenever, therefore, it is intended to take any step to procure such an order, or to resist or enforce it before or after it is made, the provisions of these enactments should be carefully perused and strictly followed. Bearing, therefore, in mind that these Acts of Parliament are the groundwork of the entire law upon these orders, it will be convenient, in considering the subject, to proceed step by step through each stage of the inquiry.

B

Who may apply for a Summons.—The 35 & 36 Vict. c. 65, s. 3, enacts that, "Any single woman who may be with child or who may be delivered of a bastard child after 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 as within the twelve months next after the birth of such child paid money for its maintenance, or at any time within the twelve months next after the return to England of the man alleged to be the father of such child, upon proof that he ceased to reside in England within the twelve months next after the birth of such child, 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 the 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."

Although the statute mentions "single woman,"

this term will include a widow, the term "single woman," in this sense, meaning a female who has no husband (Reg. v. Wymondham, 2 Q.B. 541; Antony v. Cardenham, Fort. 309; 2 Bott. 194); and even a married woman may apply for such an order if her child be really a bastard. This was decided in the case of Reg. v. Collingwood (3 New Sess. Cas. 252; 17 L. J., M. C. 168; 12 Q.B. 681), in which an order of affiliation had been made upon a party at the instance of the mother of the child, who was described in the order as Mary Ann Rance (wife of George Rance), and in which the direction as to payment was (inter alia) "until the said George Rance shall again live and cohabit with his said wife the said Mary Ann Rance, or the said Mary Ann Rance shall marry again after the decease of her said husband the said George Rance." The case came before the Queen's Bench upon a rule for a certiorari to remove the order that it might be quashed, and Lord DENMAN, in pronouncing judgment, said: "the single question is, whether a married woman becoming the mother of an illegitimate child is within 7 & 8 Vict. c. 101, which authorises the justices to make an order of bastardy ? The language of the statute applies only to a single woman, so did the language of the 6 Geo. 2, c. 31, yet Lord Ellenborough, C.J., and the whole Court, in Rex v. Luffe (8 East, 193), held, that an order might be made on the putative father of the bastard of a married woman, who

was to be considered single under the existing circumstances, and for that purpose. The Act last named is repealed indeed by that now in force; but the authority and the reason of the decision remain unimpaired, and the law differently interpreted would fail to reach a very large proportion of illegitimate children. We therefore think that we must hold this order good."

The same question was again decided in the subsequent case of Ex parte Grimes (22 L.J., M.C. 153; Reg. v. Pilkington, 21 L. T. 165, s. c. 17 Jur. 554.) In this case, at the time of the making of the order of affiliation, the woman was married, but her husband then was, and had been for several years, transported to Van Dieman's Land. The putative father continued to pay the weekly amounts pursuant to the order until the husband returned and lived with his wife again, at which period the putative father ceased his payments. The husband, it appeared, soon after absconded, and was not afterwards heard of, and the putative father was apprehended and brought before the justices on the ground of the arrears which were then due under the order. justices, however, being of opinion that by reason of the return and cohabitation of the husband the putative father was discharged from his obligation to continue the payments, refused to grant a warrant as directed by sect. 3 of the 7 & 8 Vict. c. 101, and upon a rule obtained in the Queen's

The

Bench, calling upon them to show cause why they should not issue their warrant for the arrears, the rule was made absolute. Lord CAMPBELL, C.J., in his judgment, said: "The argument which we have just heard seems to have been brought before the court in The Queen v. Collingwood, where it was argued that if the mother is not a single woman the order is bad. That argument was expressly overruled in that case, after consideration, and we ought not lightly to overturn that decision. But independently of this, I think that decision is quite right for the reason given in The King v. Luffe, that, in contemplation of law, a married woman living separate from her husband may be within the meaning of the Act, which was passed for the purpose of providing for the support of the child, which, according to the present argument, would otherwise be unprovided for. Such cannot be a just interpretation of the statute. This woman, although in reality a married woman, may well be considered as a single woman within the meaning of the Legislature in that statute. If this be so, the order was properly made." Upon this point also, Mr.

Justice ERLE remarks: "I also think this order was valid when it was made. I quite concur in The Queen v. Collingwood, founded as it is on The King v. Luffe; and I see good reason for holding that a woman may have the status of a wife, and yet with regard to the father of a