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Order of filia

tion and maintenance of a bastard child, according to

49 Geo. 3. c. 68.

The following is the form of an order of filiation and maintenance:

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County of
The order of R. J. and S. T. esquires, two of
to wit. (w) his Majesty's justices of the peace in and for the
said county, (x) one whereof is of the quorum, and both residing
next unto the limits where the parish church is, (y) within the
parish of, in the said county, made the day of — in the

day of

year of, concerning a male (z) bastard child, lately born in the parish of - aforesaid, of the body of M. D. single woman: whereas it hath appeared to us the said justices, as well upon the complaint of the churchwardens and overseers of the poor of the said parish of ——, (a) as upon the oath of the said M. D. that she the said M. D. on the now last past, was delivered of a male bastard child at in the parish of ——, (b) in the said county, and that the said bastard child is now living, and chargeable to the said parish of -, (c) and likely so to continue; and further, that P. E. of in the said county, did beget the said bastard child on the body of her the said M.D.; and whereas the said P. E. hath appeared before us, in pursuance of our summons for that purpose, but hath not shewed any sufficient cause why he the said P. E. shall not be adjudged the reputed father of the said bastard child (or, and whereas it hath been duly proved to us upon oath, that the said P. E. hath been duly summoned to appear before us the said justices, to the end we might examine into the circumstances of the premises, and whereas he the said P. E. hath neglected to appear before us, according to the said summons); we therefore upon due examination into the circumstances of the premises, as well upon the oath of the said M. D. as otherwise, do hereby adjudge (d) him the said P. E. to be the reputed father of the said bastard child; and thereupon we do order, as well for the better relief of the said parish of as for the maintenance and support of the said bastard child, that the said P. E. shall and do forthwith upon notice of this our order, pay, or cause to be paid, to the said churchwardens and overseers of the poor of the said parish of or to some or one of them, the sum of —, for and towards the expenses of the lying-in of the said M. D. and the maintenance of the said bastard child to the time of making this our order.

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(w) The county must appear to shew the jurisdiction of the magistrates, unless within a liberty which has a separate commission of the peace; the King v. Messenger, 1 Bott. 491; pl. 633.

(x) The order must be by two; but if by more it is good; Hatton's case, 2 Salk. 477.

(y) This is not necessary; 1 Bott. 470, 1.

(z) Either the sex or the age of the child must be stated; the King v. England, 1 Stra. 503.

(a) This is not material; the King v. Fox, 6 T. R. 148.

(b) This is necessary; for the birth is the foundation of the order as to relieving the parish; the King v. Cuddington, 1 Bott. 488. (c) This is also necessary, for the reason above.

(d) If this adjudication be omitted, the order is bad; for the previous recital will not assist; the King v. Pitts, Dougl. 662. The justices need not assign any reason for the adjudication; but if they assign an insufficient one, the order will be bad; the King v. Browne, 2 Stra. 811.

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And whereas, it further appeareth unto us the said justices, as well on the oath of, one of the overseers of the poor of the parish of aforesaid, as otherwise, that the reasonable costs of apprehending and securing the said P. E. together with the costs of this our order, do amount to the sum of -l. -s.d. we the said justices do therefore thereupon order that the said P. E. shall and do forthwith likewise pay, or cause to be paid, the said last-mentioned sum of ―l. —s. —d. (for indemnifying of the said parish of against the last-mentioned expenses) to the said churchwardens and overseers of the said parish of or to some one of them. And we do hereby likewise further order that the said P. E. shall likewise pay or cause to be paid to the churchwardens and overseers of the poor of the said parish of for the time being, or to some or one of them, the sum of weekly, and every week, from the day of the date of this present order, for and towards the keeping, sustentation, and maintenance of the said bastard child, for and during so long time as the said bastard child shall be chargeable to the said parish of And we do further order that the said M. D. shall also pay or cause to be paid to the said churchwardens and overseers of the poor of the said parish of being, or to some or one of them, the sum of every week, so long as the said bastard child shall be chargeable to the said parish of (e) in case she shall not nurse and take care of the said child herself. Given under our hands and seals the day and year first above written.

for the time
weekly, and

orders of bas

tardy.

An appeal against orders of bastardy was, in terms, Appeal against given by 18 Eliz. c. 3. but, in effect, the opportunity was not afforded; for the right arose only in the event of the party accused being bound over to the sessions, and the act gave no power so to bind him. (f) The right of appeal rests, therefore, on 49 Geo. 3. c. 68. s. 5. which gives the appeal to the next general quarter sessions after the order, and requires ten clear days notice to the justices and the overseers of the intention to appeal, and of the cause and matter of the appeal, and a recognizance entered into with sufficient surety within three days after the notice to try the appeal, and abide the judgment of the sessions. In the construction of this act, it has been holden that the notice must be given, and the recognizance entered into before the next ensuing sessions; and that it will not suffice to enter the appeal at the next sessions, respite it for want of notice, and give the notice ten days before the ensuing sessions, as in cases of appeals against rates and orders of removal; for the 7th section of the act expressly enacts that no appeal in any case relating to bastardy shall be brought, received, or heard,

(e) The order must restrict the maintenance to such time as the child shall be chargeable; the King v. Matthews, 2 Salk. 475.

(f) Burrell's case, 1 Mod. 20; Pudgeon's case, 1 Bulst. 255, pl. 648; the King v. Smith, 2 Bulst. 342.

Proceedings at sessions.

unless the notice and recognizance be first given; and
no practice of sessions, however uniform, can controul
them. (g) Neither can such appeal be received, though
after notice and recognizance at an adjourned sessions for
another division of the county. (h) The ten days' notice
required by this act are ten clear days, exclusive both of
the day of serving the notice and the day of holding the
sessions. (i) The notice must shew the grounds of the
appeal, as denying that the party accused is the father, or
had any
intercourse with the mother; and a mere recital
of the substance of the order will not satisfy the sta-
tute; (j) but if the grounds are properly specified, it is
not absolutely necessary that the notice should be in
writing. (k)

At the sessions, the respondents must begin to support their order; (7) and thus the whole merits of the case will be brought before the justices. In such case, the mother, when living, is, of course, the principal witness; and unless she is so shaken by cross examination, as to be unworthy of belief; or she has given accounts of the transaction materially varying; or she states the intercourse to have occurred at a time when the appellant can shew that he was at a distance from the place; or he can shew that he was elsewhere during the whole period in which the child must have been conceived; or can shew some physical incapacity, he can hardly hope to suceeed on the merits. If the order be defective in matters of mere form, the sessions may amend, though they cannot supply the want of jurisdiction. (m) If they affirm the order, their judgment is conclusive, (n) except as to matters on the face of it, for which it may be quashed after removal into the Court of King's Bench; and if they quash it on the merits, the appellant is for ever acquitted. (o) But if they quash it for want of form, a new order may be made in order to try the question on the merits. (p)

(g) The King v. Justices of Lincolnshire, 3 B. and C. 548.
(h) Id. ibid.

(i) The King v. the Justices of Herefordshire, 3 B. and A. 581.
The King v. the Justices of Oxfordshire, 1 B. and C. 87.

The King v. the Justices of Salop, 4 B. and A. 626; and the

King v. the Justices of Surrey, 5 B. and A. 539.

(1) The King v. Knill, 8 East, R. 50.

(m) 5 Geo. 2. c. 19.

(n) Webb v. Cooke, Cro. Jac. 535, 626.

(o) The King v. Terant, 2 Ld. Raym. 142, 3; Pudgeon's case, 1 Bulst. 252.

(p) The King v. Teriam, 1 Bott, 500, pl. 655.

§ 2. OF ORDERS FOR DIVERTING AND STOPPING UP

HIGHWAYS, AND APPEALS AGAINST THEM.

Orders for diverting highways, and the right of appeal against them were regulated by 13 Geo. 3. c. 78. until the 55 Geo. 3, c. 68. was substituted in its room. It is, therefore, to this act chiefly, which, on the one hand extends the power of justices, from that of merely altering and diverting, to stopping up altogether unnecessary ways, and, on the other hand, facilitates the exercise of the right of appeal, that we need advert at present.

s. 2.

By section 2. of this statute, it is enacted, "That when Provisions of it shall appear upon the view of any two or more justices 55 Geo. 3. c. 68. of the peace, that any public highway, or public bridle- Power of jusway, or footway, may be diverted so as to make the same tices to divert. nearer or more commodious to the public, and the owner or owners of the lands and grounds through which such new highway, bridleway, or footway so proposed to be made shall consent thereto, by writing under his or their hand or seal, or hands and seals, it shall and may be lawful, by order of such justices at some special sessions, to divert and turn, and to stop up such footway, and to divert, turn, stop up, and enclose, fell and dispose of such old highway, or bridleway, and to purchase the ground and soil for such new highway, bridleway, or footway, by such ways and means, and subject to such exceptions and conditions in all respects, as in the 13 Geo. 3. s. 78. mentioned with regard to highways to be widened or diverted; and also when it shall appear upon the view of any two or Power to stop up more of the said justices of the peace, that any public unnecessary highway, bridleway, or footway is unnecessary, it shall ways. and may be lawful by order of such justices, or any two of them, to stop up, and to fell and dispose of such unnecessary highway, bridleway, or footway, by such ways and means, and subject to such exceptions and conditions in all respects, as in the said recited act is mentioned in regard to highways to be widened and diverted, except that the money to arise from such sale where, by the said act, it would be applicable to the purchase of the ground and soil of the new highways or bridleways therein mentioned, shall be paid to the surveyor, or surveyors, and be applied towards the general repairs of the highways and bridleways of the parish, township, or place within which the said highway, bridleway, or footway so stopped up shall be situate, provided that in several cases before men- Notices to be tioned, a notice in the form or to the effect of schedule A, given.

556

Right of appeal.

to this act annexed (g) shall be affixed in legible characters, at the place and by the side of the said highway, bridleway, or footway from whence the same is directed to be turned, diverted, or stopped up, and also inserted in one or more newspaper or newspapers published or generally circulated in the county where the parish, township, or place in which the highway, bridleway, or footway so ordered to be diverted and turned, or stopped up, as the case may be, shall lie (or, in case no such newspaper shall be so published or circulated in such county, then in any newspaper or newspapers published or circulated in the nearest adjoining county), for three successive weeks after the making of such order, and a like notice shall be affixed to the door of the church or chapel of every parish or township in which such highway, bridleway, or footway so ordered to be diverted, turned, or stopped up, or any part thereof, shall lie on three successive Sundays subsequent to the making of such order; and the said several notices having been so published, the said order shall at the quarter sessions which shall be holden within the limit where the highway, bridleway, or footway so diverted and turned, or stopped up, shall lie, next after the expiration of four weeks from the first day on which such notices shall have been published as aforesaid, be returned to the clerk of the peace in open court, and lodged with him; and the order shall at such quarter sessions be confirmed, and by the clerk of the peace enrolled amongst the records of the said Court of Quarter Sessions."

The third section provides for the right of appeal by enacting, "That where any such highway, bridleway, or footway, shall be so ordered to be stopped up or enclosed, and such new highway, bridleway, or footway, set out and appropriated in lieu thereof as aforesaid; or where any unnecessary highway, bridleway, or footway shall be

(4) The following is the form of the notice given:-" Notice is hereby given, that on the day of - last, an order was signed by J. W. and T. H. two of his Majesty's justices of the peace in and for the county of for (if the order be for turning, diverting, and stopping up, &c. so state it, and describe the road ordered to be turned, diverted, and stopped up; if the order be for stopping up a useless road, here so state it, and describe the road ordered to be stopped up); and that the said order will be lodged with the clerk of the peace for the said county, at the General Quarter Sessions of the Peace to be holden at in and for the said county, on the day of next, and also that the said order will, at the said quarter sessions be confirmed and enrolled, unless upon an appeal against the same to be then made, it be otherwise determined."

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