appear that the former application was dismissed upon the merits, and no additional evidence was adduced-that ought to be a sufficient

answer.

In this case the woman had applied for an order of affiliation, and not being prepared at the hearing with corroboratvie evidence, her application was dismissed. Subsequently (within twelve months of the child's birth) she made another application, which came on for hearing before other justices, but in the same petty sessional division, whereupon an order was made. Upon an application for a rule for a certiorari to remove this order, that it might be quashed on the ground of a want of jurisdiction in the justices to make it, the rule was discharged. In giving judgment, COCKBURN, C.J. said: "I am of opinion that this rule should be discharged. In the first place, I agree with the former decision, in Reg. v. Machen, that where an application of this nature is dismissed upon the ground that there has been no sufficient corroborative evidence, it is not a dismissal upon the merits, and therefore a fresh application, if within the statutable time, may be made. But it is not necessary to rest our decision upon that ground. If there has been a hearing upon the merits, and a dismissal upon the merits, and if that be brought to the notice of the justices upon a second application and there is no other evidence produced, I think that ought to be a sufficient answer; and if in this case it had been brought

to the attention of the justices that the case had before been dismissed upon the merits, and that there was no other evidence in support of the application than was before submitted to them, I should have been disposed to give effect to the present application. But that was not so in the present case." So, too, BLACKBURN, J. said: "In Reg. v. Machen it was decided that a mandamus should go to the justices to hear the case on a second application, without regard to the former decision being upon the merits. The Court there said that the analogy was to a nonsuit. I by no means say that if it appeared that the former decision was really upon the merits I should not hold that it was final; but, as it appears that the first application was dismissed for want of sufficient corroborative evidence, we cannot, without overruling Reg. v. Machen, hold that they had not jurisdiction to adjudicate upon the second application. The case of Reg. v. Thomas has no application." MELLOR, J. also expresses a very clear opinion upon the subject. He says: "We are certainly not justified in overruling Reg. v. Machen and we must hold ourselves to be bound by it, and in this particular case there is not the slightest reason why we should not follow it; for although, in one sense, the former application was dismissed upon the merits-that is, not upon any merely technical grounds-they were not merits in the sense in which we understand them in re

D

lation to this question." The last case upon this point is that of The Queen v. Grant and another (36 L. J., M. C. 89; Reg. v. Gaunt and another, 16 L. T. 379, s.c.) In that case a summons which had been taken out by one Agnes Gilman against one Bradbury, as the father of her bastard child, was heard on the 27th of June, 1866, before justices in petty sessions, and the justices, after hearing witnesses on either side, dismissed the application on the merits. On the 25th of March, 1867, a fresh summons was taken out by Agnes Gilman, which was heard on the 27th before two justices, one of whom had been present at the previous hearing. Before any evidence was adduced on the part of the applicant, the attorney for the defendant; objected to the hearing, and called the attention of the justices to the previous application, and the fact that it had been dismissed upon the merits. The justices, however, overruled the objection on the ground that the previous application could not be considered to have been dismissed upon the merits, as Joseph Wain, one of the witnesses for the defendant, had been convicted at the assizes for perjury assigned upon the evidence given by him at the hearing of the former application. The justices, therefore, made an order which, was afterwards removed into the Queen's Bench to be quashed when the Court upheld the decision of the Court below. In his judgment, BLACKBURN, J. says: "I think this

rule" (rule to quash the order) "must be dis charged. The case of The Queen v. Machen, which was founded upon the decision in The King v. Jenkin (Cas. temp. Hard. 301), seems to establish that a refusal by justices to make an order in bastardy is in the nature of a nonsuit, and does not make the matter res judicata. The reason seems to be that as the bastardy statutes give an appeal where the justices make an order, but do not where they refuse to make it, the parties would be upon an unequal footing if the mother were not at liberty to apply again. No doubt the justices would regard a previous dismissal of a summons upon the merits as very cogent evidence in favour of the defendant; where, however, as here, perjury was shown to have been committed at the first hearing, the justices were quite right in reopening the case."

It will of course be observed that, though the right to make a second application (or any number of applications) after the dismissal of the first is admitted, such subsequent application must be made within the same time as would be necessary to support the original one: (See Reg. v. Thomas, ante, p. 18.)

The Evidence-Corroborative Evidence.-Supposing no preliminary objection to be taken, the woman will have to substantiate her complaint by proving that the defendant is the father of the child. This proof she must give not only by her own direct and positive testimony, but by

some corroborative evidence, in some material

particular, apart from herself. In Reg. v. Armitage (27 L. T. Rep. N. S. 41) it was held that the evidence of the mother cannot be dispensed with: (See ante, p. 40.) As the corroborative evidence thus required is to be given merely to the satisfaction of the justices, and as what will satisfy some minds will make little impression upon others, it is impossible to lay down any general rules upon the subject; but it will occur to almost everyone that if the woman swears positively to the fact of the defendant being the father of the child, and give her evidence circumstantially, that evidence will be corroborative in a material particular, which shows that the defendant has been seen with the woman under very suspicious circumstances, indicating close and indecent intimacy between them at or about the time when the sexual intercourse must have taken place. So, too, evidence by other parties of conversations between the woman and the man, in which he has been treated as the father, which he has not denied, or any admission on the part of the defendant that he has had connection with the woman, unless, indeed, her habits in life are notoriously lewd, in which case the latter evidence would be of little weight. Justices will, however, do well to bear in mind that the corroborative evidence is to be of some material particular, guiding their minds to the belief of the