poor of any parish, township, or place liable to the maintenance 49 G. 8. c. 68. or support of such bastard child or children, or where such bastard child or children shall then be, and upon proof on oath of such order for the payment of such sum or sums of money, and of such sum or sums of money being unpaid, and of a demand of such payment having been made, and a refusal to pay the same, or that such reputed father or such mother hath left his or her usual place of abode, and hath avoided a demand thereof being made by such overseer, to issue his warrant (a) (Z.A a.) to apprehend such reputed father or such mother, and to bring him or her before such justice or any other justice of the peace of the same county, riding, division, city, liberty, or town corporate, to answer such complaint; and if such reputed father or such mother shall not pay such sum or sums of money as shall appear to the said justice before whom such reputed father or such mother shall be brought to be due and unpaid, or shall not shew to such justice some reasonable and sufficient cause for not so doing, it shall be lawful for such justice, and the said justice is hereby required to commit (Bb.) such reputed father or such mother to the public house of correction or common gaol of the said county, to be there kept to hard labour for the space of three months, unless such reputed father or such mother shall, before the expiration of the said three months, pay or cause to be paid to one of the overseers of the poor of the parish, township, or place on whose behalf such complaint as aforesaid was made, the said sum or sums of money so due and unpaid as aforesaid, and so from time to time, and as often as such reputed father or such mother shall in manner aforesaid neglect or refuse to pay any other sum or sums of money that shall afterwards become due by virtue of and under such order after the expiration of or discharge from any such former imprisonment as aforesaid." (b) (a) Vide R. v. Fulham and Martyr, 13 East, 55. post, 357., per Lord Ellenborough. A summons (Z.) should be issued in the first instance; see a form of a warrant (Aa.) and note (a), and Vol. V. tit. Carrant. Declaration A warrant for The the commitment of the putative father of a bastard child, until he should pay a sum due for the maintenance of the child and legal accustomed fees, or until he should be otherwise delivered by due (b) Robson v. Spearman and another, E. 1 G. 4., 3 B. & A. 493. for assaulting plaintiff, and imprisoning him in a certain gaol, &c. for six days, and til he paid a large sum of money. Plea, not guilty. At the trial, cor. Bayley J., it appeared that plaintiff, against whom a regular order of filiation had been previously made, had been committed by the warrant of the defendant Spearman, who was a magistrate, for not having paid the arrears due under that order. The warrant being produced, appeared to be for the commitment of the plaintiff to the gaol of Morpeth, until he should pay the sum due, and legal accustomed fees, or until he should be otherwise delivered by due course of law. plaintiff having been imprisoned six days, paid the money, and was discharged. The learned judge being of opinion that the warrant was illegal, inasmuch as by the 49 G. 3. c. 68. § 3. the magistrate was empowered only to commit for three months, unless the money be sooner paid, (whereas here the commitment was general, being until he should pay the money,) directed the jury to find a verdict for the plaintiff against Spearman. The other defendant, who was the constable who executed the warrant, had a verdict. Cross Serjt. moved to enter a nonsuit. Here Robson was discharged, in point of fact, within the three months, for which, by 49 G. 3. c. 68. § 3., he might have been committed. If he had been detained beyond that period under the warrant, he might have had some ground for the action.-Abbott C. J. I am of opinion that the warrant in this case was illegal, 49 G. 3. c. 68. not being such as the justice had authority to make. It was his duty to have pursued the words of the stat. 49 G. 3. c. 68. If he had so done, it would have given the party committed the option either of paying the money, or of staying three months in prison, and being thereby altogether discharged from the payment. This warrant is for his imprisonment till he shall pay the money, and deprives course of law, $ 3. to make 49 G. S. c. 68. Expenses and costs subject to the discretion and allowance of magistrates, or court of quarter sessions, as the case may be. 18 Eliz. c. 3. antè, p. 349. Two next justices. Child born in extra-parochial place. An order may § 4. provides and enacts, "That all such charges, expenses, and costs shall be wholly subject to the discretion of the justices or court of quarter sessions who shall make such order of filiation; and the justices or court of quarter sessions are hereby authorized, if they shall see fit, to allow and order payment of the whole or any part thereof: Provided always, that the costs of apprehending and securing the reputed father, and of the order of filiation, shall not in any case exceed the sum of 10.; and for securing the due payment of the same, after such allowance and order as aforesaid, all and every the powers, authorities, provisions, clauses, matters, and things contained in the said act passed in the eighteenth year of the reign of queen Elizabeth, concerning bastards begotten and born out of lawful matrimony, shall be respectively observed, used, and practised in the execution of this act, and shall be construed, deemed, and taken to apply as fully and effectually, to all intents and purposes, as if the said powers, authorities, provisions, clauses, matters, and things were specially recited and re-enacted in this act." (V. W. X.) The said bastards being now left to be kept at the charges of the parish where they be born.] For at that time they could have no other settlement. There were only two kinds of settlements then existing; the one was by birth, and the other where the person should have resided for the most part during the space of three years. So that till the child should be three years of age, it could possibly have no other settlement. And the place of birth continues to be the settlement of bastard children still, unless in some few excepted cases. (But see stat. 4 & 5 W. 4. c. 76. § 71. Vol. IV. tit. Poor.) Two justices in or next unto the limits where the parish church is.] By the case of Rex v. Skinn, E. 15 G. 2., 1 Bott, 527., it appears that the words, "in or next unto the limits," are only directory, and that an order of maintenance by two justices not "in or next unto the limits where the parish church is," is valid. If, therefore, "two justices cannot agree in the order, or shall make no order," it should seem that in the one case a justice not being "the next," may join with either of the other in making the order, and in the other case, recourse might be had to two other justices, being as near the limits as such could be procured. If the child be born in an extra-parochial place, the two justices have no authority, it seems, to make an order of bastardy. Re v. Baker, 1 Bott, 528. (a) Shall and may by their discretion.] Here is no time limited for be made at any their proceeding in this matter: so that the order may be made at any time after the birth of the child. time after the birth. Where the time for appeal is past, the commitment must be under 49 G. 3. And in the case of Rex v. Miles, 1 Sess. Cas. 77. 1 Bott, 522, on motion to quash an order of bastardy, it was resolved, that if the party of that advantage. The difference is a most material one, and it gives the party commited a right of action against the magistrate. (See the other point decided in this case, post, tit. Justices.) Ex parte Addis, M. 1822, 1 B. & C. 87. Where an order of filiation is made, and the time for appeal is past, it cannot be enforced by commitment under stat. 18 Eliz. c. 3. for refusal to comply with it, but the magistrate must proceed under stat. 49 G. 3. c. 68. § 3. by commitment for three months; this being the third case mentioned in stat. 49 G. 3. c. 68. § 3. viz. "an order against which no appeal has been made." (See this case more fully stated, post, p. 355.) (a) This does not apply to a hamlet maintaining its own poor. Rer v. Mi ford, 1 Bott, 581. the father run away and return, though fourteen years after, yet an order to fix the child on him is good; for there is no statute of limitation in these cases. By stat. 6 G. 2. c. 31. § 3. (antè, p. 331.) if the reputed father 6 G. 2. c. 31. be in prison, and no order be made in six weeks after the birth of the child, he may in such case be discharged from his imprisonment; but the order nevertheless made upon him afterwards will be good. Take order.] Herein they must proceed as in all other like cases, by giving the party accused an opportunity of being heard in his defence. In the case of Rex v. Gotten, 1 Sess. Cas. 179., an information was moved for against the defendant, who with another justice made an order of bastardy upon one Fitzgerald, without summoning him to appear before them to make his defence. Upon appeal to the sessions he was acquitted, and put to great expenses; which it was insisted was contrary to natural justice. By Mr. J. Page: No man in an office can be supposed to be so ignorant as not to know it is against natural justice to convict a man without a summons: the examination ought to be so made that the truth may appear: and this must be by examining both sides; otherwise it is partial. Here was no taking by warrant, and therefore an action of false imprisonment would not lie; and this is the only method that can be used to punish the justice. -Mr. J. Probyn. The principal objection about a summons is right in law and in reason: possibly an action on the case might be framed: there may possibly have been only an error in judgment, and it is hard to grant an information. Mr. J. Lee. If this were strictly a conviction against which no appeal lies, an information ought to be granted; but the matter is not so very strong in the case of orders. And the rule was discharged. That a summons by a third justice is sufficient, is decided in the case of Rex v. Taylor and Neale, 2 Sess. Cas. 192. Cas. Temp. Hardw. 112. And although it is indispensable that the putative father should be suminoned to appear, previously to an order being made upon him, his presence during the mother's examination before the justices out of sessions is not necessary to the validity of such order. Rex v. Upton Gray, Cald. 308. 1 Bolt, 544. If the putative father, being summoned, will not attend himself, there is no reason the justices should hear any witnesses or defence made for him. Rex v. Neal, 1 Bott, 552. But if a person charged with a bastard child is under any incapacity of attending by illness or otherwise, the justices may, and ought to receive evidence on his behalf, but not otherwise. It is the practice in B. R. not to hear exceptions to an order of bastardy in the absence of the person charged, except under such circumstances as above mentioned. Rex v. Taylor and Neale, suprà, et Serjeant Hill's MSS. (See also post, p. 370, 371 ) By charging such mother.] Rex v. Ellen Taylor, late Bent, 3 Burr. 1681. 1 Bott, 532. She was delivered of a bastard child in the parish of Clifton. After which, and before any order made, she married one Abraham Taylor, of the parish of MiddleThe overseers of Clifton applied to the justices, who made an order of filiation, charging her with 8d. a week towards the relief of the parish. She pleaded her utter inability, and refused ton. 18 Eliz. c. 3. antè, p. 349. Reputed father must be summoned. To convict a man without a summons is against natural justice. Summons by a third justice is sufficient. The order will be valid, though the putative father be not present at the examination. No defence shall be made for the putative father in his absence, unless on account of illness. Mother marrying before the order is made, may be com obeying it. mitted for dis No order of filiation, &c. can be made be born alive. to pay. Upon which the justices committed her to the house of correction. She was brought up by habeas corpus, and her counsel moved for her discharge, insisting upon the illegality of her commitment; for that, being a married woman, she was not an object of the justices' jurisdiction, and the husband was not summoned. But by the court: A feme covert is liable to be prosecuted for crimes committed by her. This woman has disobeyed the order of the justices, and the statute prescribes the punishment here inflicted upon her. There is no need to summon the husband in a criminal prosecution against the wife. Where an order of bastardy stated, that, "E. A., single woman, on the 13th of September 1810, was delivered of a dead-born male unless the child bastard child," Lord Ellenborough C. J. said, "All the provisions in the several statutes assume the birth of a child, which must of course be born alive.”—Grose J." No dead substance is the object of legislative provision in any of the acts."-Order quashed. Rez v. De Brouquens, 14 East, 277. Whether the reputed father may take the child. Justices cannot commit or require sureties, till default is made: nor can the sessions. With the payment of money weekly, or other sustentation.] That is, to the overseers for the use of such child. But whether the overseers shall have the sole application of the money, and ordering of such child; or the reputed father may take the child from the parish, and provide for it himself, hath been doubted, and seemeth not yet to have been fully settled. Sed vid. post, p.371. and antè, p. 338. Such party so making default in not performing the said order to be committed.] Until default shall be made, the justices have no power to commit, or to require sureties for the performance of the order, or for appearing at the sessions. Q. v. Chaffey, 2 Ld. Raym. 858. 3 Salk. 66. 1 Barnard. 261. 1 Bott, 520. The power of the sessions to make an order of filiation and maintenance is first given by 3 Car. 1. c. 4. § 15.: and that act gives the sessions the like powers to those conferred by the stat. 18 Eliz. to justices out of sessions. Since, then, the justices out of sessions have no authority to require a recognizance, unless the party disobey the order of maintenance, therefore the sessions, although they have an origi nal power to make an order of bastardy, cannot order the father to give security for the performance of that order, as appears br the case of Rex v. Fox, 1 Bott, 530., and Rex v. Price, 6 T. R. 147. 1 Bott, 614. (a) and But if the sessions in such a case make an order of bastardy and also order the putative father to give security for the performance of that order, the court of K. B. will quash the latter part, confirm the former part of the order. Rex v. Price, 6 T. R. 147. and Rex v. Fox, there cited. (a) In Q. v. Weston, 1 Salk. 122., Holt C. J. said, that the sessions may commit as the two justices might have done, unless the party put in surety to perform the order, or to appear at the next sessions, which implies an appeal from the same court to the same court, a thing not usual in other like cases, an appeal importing the removal of a cause from an inferior to a higher jurisdiction. On the other hand, Ld. C. J. Pratt, in the case of R. v. Cleg, 1 Str. 475., said, that upon an original order at sessions, the party hath no opportunity to relieve him self by way of appeal, and from hence urges the extreme necessity of a strict and regular summons of the reputed father, lest he happened to be condemned unheard. 8 Mod. 4. S.C. Where the sessions make an original order of filiation and maintenance, and such order is disobeyed, the party may be taken up and committed, unless he give security for performance pursuant to stat. 18 Eliz. c. 3. § 2. antè, p. 349. Ex parte Addis, 1 B. & C. 87. In this case a rule was obtained to shew cause why a writ of habeas corpus should not issue, directed to the keeper of the gaol of the county of Leicester, to bring up the body of Joseph Addis, for the purpose of discharging him out of custody, on the ground that the warrant of commitment was defective. It appeared, that on the 4th of April 1822, two justices made an order of filiation, which recited that complaint had been made to them by the overseers of S., as well on their oath, as on that of A. S., late A. G., single woman; that the said A. G. was delivered of a bastard child on the 29th November 1808, at the said parish, and that the said child was chargeable to the said parish from that time till April 16th 1812; and that J. Addis did beget the said child; and that the child, soon after the 29th November 1808, was filiated by the said A. G., and that the said J. Addis did then abscond. It then recited that the defendant was present on the 4th April 1822, before the justices, in pursuance of their warrant, who adjudged him to be the reputed father, and thereupon ordered him to pay 8l. (being the expenses incident to the birth and the lying-in of the said A. G., and the costs of apprehending and securing him the said J. A., and of the order of filiation); and the further sum of 177. 10s., being after the rate of 2s. per week for three years and nineteen weeks, viz. up to the 6th of April 1812, on which day the bastard child died; which sum had been expended in the maintenance of the said bastard child. The justices, on the same day, in consequence of the defendant having refused to pay, or to find surety for the payment of the sums mentioned in the order, committed him until those sums should be duly paid, or until he should be otherwise delivered by due course of law. At the sessions held April 15th 1822, no appeal was entered against the order, but the sessions thought the commitment illegal on the face of it, and discharged the defendant. On the 8th September 1822, the defendant was again brought before the magistrates who had made the order, and they then committed him again to prison. The warrant of commitment recited the order of filiation; and that the defendant had not paid, or caused to be paid the said sums of 8l. and 177. 10s. and did still refuse so to do. And thereupon, they adjudged him to be guilty of the offence aforesaid, against the provisions of the 18 Eliz. c. 3., and therefore, under the directions of the aforesaid statute, committed him to ward in the common gaol there, to remain without bail or mainprize, except he should put in sufficient surety to perform the said order, or else personally to appear at the next general quarter sessions of the peace to be holden for the county of Leicester; and also to abide such order as the justices of the peace there assembled, or the more part of them, then and there should take in that behalf, &c. In moving for the rule nisi, two points were made. First, that the order of filiation recited in the warrant was bad, being for by-gone maintenance. Secondly, that the magistrates had no power to commit under the 18 Eliz. c. 3., but were bound to commit for three months under 49 G. 3. c. 68. § 3. On shewing cause, the first objection was Where an order of bastardy has the time for appeal past, it cannot be enforced under 18 Eliz. c. 3.; been made, and but the magistrate must pro ceed under 49 G. 3. c. 68. § 3. by commitment for three months. |