Page images
PDF
EPUB

so appealed against unless the evidence of the said mother shall have been corroborated in some material particular by other testimony, to the satisfaction of the said justices in quarter sessions assembled, or the said recorder."

Upon this provision the following remarks suggest themselves. Under the repealed 3rd section of the 7 & 8 Vict. c. 101, the justices at petty sessions were not to make an order unless the evidence of the mother were "corroborated in some material particular by other testimony to the satisfaction of the said justices;" and by sect. 6 of the 8 Vict. c. 10, the justices at sessions are in like manner not to confirm the order so appealed against, "unless the evidence of the said mother shall have been corroborated in some material particular by other testimony to the satisfaction of the said justices." Now, the 3rd section of the 7 & 8 Vict. c. 101, is repealed; but the 6th section of the 8 Vict. c. 10, is not repealed. If reference be now made to the 4th section of the 35 & 36 Vict. c. 65, which is in substitution of the 3rd section of the 7 & 8 Vict. c. 101, it will be found that the word "testimony" is excluded, and the word "evidence" substituted for it. This change of language must have been for a purpose. There certainly does not appear to have been any judicial decision warranting the change, nor does it appear that any practical difficulties have arisen; the words "testimony" and "evidence" have always been

G

considered as convertible; and thus letters of the defendant have uniformly been treated as coming within the term "testimony." If, however, as may reasonably be supposed, the word "evidence" was introduced with the object of carrying out some purpose not to be accomplished merely by the word "testimony," how is it that in the 6th section of the 8 Vict. c. 10, which governs the proceedings at the hearing of the appeal, the word "testimony" has been allowed to remain? Is there to be one rule applicable to a hearing at petty sessions and another applicable to a hearing upon appeal? In practice it will be convenient upon the appeal to treat the word "testimony" as really meaning "evidence."

Upon the last words of the section a question arose in The Queen v. The Justices of Buckinghamshire (18 L. J., M. C. 113; 3 New Sess. Cas. 500); whether, upon an appeal, it was competent to the justices under any circumstances to confirm the order, unless the evidence of the woman shall have been corroborated in some material particular? In that case, upon the appeal coming on, the appellant took a preliminary objection to the right of the petty sessions to make the order appealed against, which objection being overruled, the counsel for the appellant stated to the bench that after such decision he should retire from the case, and he accordingly did so, whereupon the sessions confirmed the order, without

hearing the evidence of the woman, or of any person on her behalf. Upon the argument in the Queen's Bench, upon this order being brought up to be quashed, on the ground (inter alia) that the quarter sessions had no right to confirm the order without hearing the evidence of the mother and having it corroborated, the court held that the quarter sessions were quite right in the course they had adopted, the meaning of the provision merely being, that the woman shall be an admissible witness upon the trial of the appeal, but her evidence must be corroborated, but that it did not render it necessary to hear evidence when the appeal was abandoned.

Power of the Sessions to Reduce the amount directed to be paid by the Order.-By sect. 9 of the 35 & 36 Vict. c. 65, power is given to the quarter session to reduce the amount directed to be paid for the maintenance and education, or on account of the relief of the child. The words of the section are the following, "The Court of Quarter Sessions, on appeal to them against any order made pursuant to the provisions of this Act, may, if they think fit, reduce the amount directed to be paid for the maintenance and education or on account of the relief of the child named in such order, and they shall thereupon alter the order accordingly."

It will be observed that the power to reduce extends only to the amount directed to be paid

for the maintenance and education, or on account of the relief of the child; but as regards the expenses incidental to the birth of the child, and of its funeral expenses, the decision of the justices at petty sessions cannot be modified.

The observations made upon the subject of the evidence to be adduced upon the hearing before the justices at petty sessions are equally applicable to the trial of the appeal: (See ante, p. 61.)

The proceedings upon an appeal against an order of affiliation in no material particulars differ from those of ordinary appeals, and it is unnecessary, therefore, further to enter into this subject. Suffice it to say, that whether the justices affirm the order or quash it, they are empowered by sect. 4 of the 7 & 8 Vict. c. 101, to award such costs as to them may seem fit.

Power to abandon Appeal.-The 5th section of the 8 Vict. c. 10, enacts, "that if at any time before the hearing of the appeal the putative father, who shall have entered into any such recognisance, shall give notice in writing of his abandonment of the appeal to the mother of the child in whose favour the order shall have been made, and to the justice or justices before whom the said recognisance shall have been taken, and shall pay or tender to the said mother all sums then due under the said order, and such costs and expenses as she shall have incurred by

reason of such notice of appeal, the said recognisance so entered into by the said putative father shall not be estreated, nor in any manner put in force or otherwise proceeded with."

Putative Father a good Witness.—It will of course not be overlooked that now, by virtue of the 14 & 15 Vict. c. 99, sect. 2, the putative father is a good witness, and may be called and examined either for the respondent or on his own behalf.

Finality of the Decision of the Quarter Sessions.

:

When the quarter sessions have heard and decided the appeal upon the merits, their decision is final, and a decision in favour of the appellant upon the ground that the evidence in corroboration of the mother's evidence is not satisfactory is a decision upon the merits. In the case of the Queen v. Glynne and another (41 L. J., M. C. 58; 26 L. T. Rep. N. S. 61), the facts were these Upon the hearing of an appeal against an order of justices at petty sessions, adjudicating the appellant to be the putative father of a bastard child, the respondent, the mother of the child, and witnesses on her behalf were examined, after which the Court decided that the evidence of the respondent was not corroborated with regard to the main issue in any material point, and quashed the order. Subsequently a fresh summons in respect of the same matter was taken out by the woman, and upon its coming on for hearing it was objected on the part of

« PreviousContinue »