Bastardy Order-Indictment for Disobedience-First Order invalid-Second Application-Jurisdiction of Justices-Supersedeas-Quashing formally.

An order of affiliation void for defects appearing upon the face of it is altogether a nullity, and may be treated just as if the Justices who made the order had never heard the case at all; and it is not necessary to proceed either by way of appeal or writ of certiorari in order to quash it.

Where, therefore, such a defective order had been made, and served, but not acted upon, and upon a second application in the same matter two Justices made another valid order of affiliation,-Held, that the Justices had jurisdiction to make the second order, although the first had not been got rid of upon appeal or by writ of certiorari, and that an indictment for disobedience of it was maintainable.

Semble-Per Parke, B. that the second order would have been equally valid if the Justices first applied to had, after hearing the complaint, refused to make an order.

A supersedeas under the hands and seals of Justices indorsed upon, and purporting to supersede an order previously made by them, has per se no annulling effect.

This was an indictment for disobeying an order of Justices, dated the 6th of May 1848, and was tried at the Epiphany Sussex Sessions, at Petworth. The defendant was found guilty, subject to the opinion of this Court on the following

Before Lord Denman, C.J., Parke, B., Patteson, J., Coltman, J. and Williams, J.

CASE.

On the 1st day of January 1848 S. H. obtained an order of two Justices against the defendant as the putative father of her bastard child, and served it upon the defendant, but no payment was made under it. On the following 28th day of April the same Justices indorsed upon the said order a supersedeas, under their hands and seals, by which in terms they absolutely and irrevocably superseded, annulled and made void the said order, upon the ground that it was invalid according to law by reason of certain errors therein and omissions therefrom (1). That supersedeas was on the same day served upon the defendant, and a tender was made him, but declined, of a sum sufficient to cover all costs actually incurred, in consequence of such order. On the next day S. H. made another complaint, and a fresh summons was thereupon issued by one of the same Justices, requiring the defendant to appear and answer such complaint at a petty sessions on the 6th of May. The defendant protested against the jurisdiction of the Justices to hear and adjudicate upon such second complaint, as there had already been a judicial hearing and adjudication by a competent tribunal on the same subjectmatter by the order of the 1st of January, which was still to be considered in existence. The Justices, considering they had jurisdiction, made another order against the defendant upon the said second complaint of the said S. H, which said last-mentioned order the defendant was indicted for disobeying. All the facts were admitted on the trial, but on behalf of the defendant it was contended, that in consequence of the making of the first order the second order was without jurisdiction, the former not having been quashed on appeal, and being therefore still in existence. For the prosecution it was argued, that as the first order was an invalid one, which was admitted by the defendant's counsel, and had been duly superseded, and as a sufficient tender of costs had been made to the defendant before the second summons, the Justices had jurisdiction to make the second order; and if this Court should be of that opinion, the verdict of

(1) The order stated the appearance of the putative father in pursuance of the summons to appear, but omitted to state that the evidence had been heard by the Justices in his "presence and hearing."

guilty was to stand; if not, to be set aside and one of not guilty entered.

Creasy, for the prisoner.-The ground of objection here is, that the second order, upon which the indictment is founded, was made without jurisdiction. The point was discussed in The Queen v. Hinchliff (2), but there it became unnecessary to decide it. The supersedeas of the Justices was a nullity, and had no effect in getting rid of the first order, which until done away with by one of the modes pointed out by the law, namely, an appeal or certiorari, was only voidable (3)-The King v. the Justices of Cheshire (4). All the cases of a valid su

persedeas by Magistrates are either in the instances of warrants of committal or orders of removal, the latter being always considered and dealt with as properly warrants of removal. There are numerous cases of poor law orders, where questions of this nature have been considered and decided, and they all seem to result in this, that where all the parties affected by an order consent to its abandonment, the principle applies that "Quilibet renuntiare potest juri pro se nato;" and the first order may then be treated wholly as if it never had existed, and a second order may well be made. This is the argument correctly employed in The Queen v. Townstall (5), in which The King v. Llanrhydd (6) and other cases on the subject are cited, and their true effect defined. Without such an abandonment by consent a supersedeas is a nullity.

[PARKE, B.-The first order is void upon the face of it and a nullity. Why therefore go through any form of quashing it?]

[LORD DENMAN, C.J.-The practice you refer to has been constantly kept alive in a series of cases, and there can be no doubt that the supersedeas by the Justices amounts to nothing. But here, it is said, the first order was altogether void, and therefore the Justices had jurisdiction to make the second, and that is the real question.]

Then, it is submitted, the application to the first two Justices, and the order made

(2) 10 Q.B. Rep. 356; s. c. 16 Law J. Rep. (N.s.) M.C. 78.

by them, exhausted all the jurisdiction given by the bastardy statutes (7)-The King v. Sainsbury (8), Pridgeon's case (9), The King v. Tenant (10), Paley on Convictions, p. 27. The case of The King v. Jenkins (11) will probably be relied upon by the other side. That was a case under the old Bastardy Act of 18 Eliz., which is very different from the later statutes: besides, it by no means decides that an order of Justices can be treated as a nullity until regularly quashed. Allowing a second set of Justices to judge for themselves, whether or not a first order is void would be highly inconvenient. For it is at all times very difficult to say what defects are sufficient to make an order altogether void; and as there is nothing to prevent an order from being brought up, even by the Justices themselves, for the purpose of quashing it, if its invalidity be suspected, it ought to be considered as in existence to the extent of preventing other Justices from acting until formally got rid of-Barons v. Luscombe (12), The Queen v. the Justices of Middlesex (13). It is even a question whether Justices can entertain a second application, where the first Justices hear the application and refuse to make an order, and that is now pending before the Court of Queen's Bench in The Queen v. the Justices of Gloucestershire (14), and other cases.

J. J. Johnson, for the prosecution.-The second order is valid, and the indictment, therefore, sustainable. In the case of The Queen v. Hinchliff the order was good upon the face of it, and notice to abandon was given. Here nothing whatever was done upon the first order. There was no notice of appeal, and the order itself is admitted on all hands to be invalid upon the face of it. If the first Magistrates had merely dismissed the application, as they might have done, without making any order at all, that

(7) 4 & 5 Will. 4. c. 76; 2 & 3 Vict. c. 85; 7 & 8 Vict. c. 101, and 8 Vict. c. 10.

(8) 4 Term Rep. 451.

(9) W. Jones, 330.

(10) 2 Ld. Raym. 1423.

(11) Ca. temp. Hard. 301; s. c. 2 Old Sess. Cas.

229.

(12) 3 Ad. & E. 589; s. c. 4 Law J. Rep. (N.s.) M.C. 109.

(13) 11 Ibid. 809; s. c. 9 Law J. Rep. (N.S.) M.C. 59.

(14) Not yet decided.

would not, it is submitted, have precluded the second Magistrates from proceeding in the matter-The King v. Jenkins; and à fortiori, where the first Magistrates do proceed, but, as here, make an order invalid altogether. This was even stronger than a case where Justices entertain and hear an application and then refuse to make an order on the putative father; and yet in such a case it is submitted there would be no good reason why a second application should not be made. If an order be valid upon the face of it, then, indeed, it can only be got rid of by appeal.

[PARKE, B.-That is because the order may be enforced in the mean time.]

Just so; and in that respect was different from the order in question. The power of Magistrates to make a second order, after a previous bad order, has been recognized in several cases, and the giving up of the first order encouraged―The Queen v. Bridgman (15), The Queen v. the Justices of the West Riding (16), The Queen v. the Inhabitants of St. Pancras (17), The Queen v. the Justices of Buckinghamshire (18). It is clear, too, that in ordinary cases, after service of an order, a party in whose favour it is made may abandon it-Maunder v. Collett (19), M'Dougall v. Nicholls (20). The general principle that a party should not be twice put in peril in respect of the same matter, is admitted, but it does not apply here, as the first order could not legally have been enforced. The authority, too, of all the cases relied upon on the other side, in which the orders appeared to be good on the face of them, is not questioned, and in that respect they are clearly distinguishable from the present. As to the supersedeas it is unnecessary to say anything, as the Court has already decided that it is to be treated as nothing.

Creasy was heard in reply.

LORD DENMAN, C.J.-The first order of the Justices was clearly void upon first

(15) 15 Law J. Rep. (N.s.) M.C. 44.

(16) 2 Q.B. Rep. 705; s. c. 11 Law J. Rep. (N.s.) M.C. 57.

(17) 3 Ibid. 352; s. c. 12 Law J. Rep. (N.s.) M.C. 52.

(18) 18 Law J. Rep. (N.s.) M.C. 113.

(19) 3 Com. B. Rep. 554; s. c. 16 Law J. Rep. (N.S.) C.P. 17.

(20) 3 Ad. & E. 813.

principles, and did not operate at all in favour of anybody. It was therefore open to the Justices to make, as they have done, a second order upon a fresh information laid before them, and the disobedience of such second order was an offence for which a prisoner could, as in the present case, be properly convicted.

PARKE, B.-I also think that the prisoner was properly convicted. I think if the first Justices applied to had, after hearing the complaint, refused to make an order, the second Justices would have had jurisdiction to act. It is not as if this application were required to be made to the next sessions after the birth of the child or some other specified time, and the particular time had passed. Here jurisdiction is given. to two Justices generally, and therefore if the two first applied to refuse to make any order, the party may, I think, apply to two other Justices who may make an order. Then the question here is, whether the first order made did not become equivalent to no order at all? Now I take it, as it was not an order which could be enforced against the putative father, it had no binding effect upon the mother, and must be treated as altogether null and void, and the parties considered in the same situation as if the first Justices had declined to make any order at all; or having drawn up an order had refused to sign it; and that being so, the second Justices had jurisdiction to make the order in question. That seems to have been the ground of my Brother Erle's judgment in The Queen v. the Justices of Buckinghamshire.

PATTESON, J.-The first order was void and good for nothing-a mere piece of waste paper. It must be treated just as if the case had never been heard at all; but not the same as a case where the first Justices applied to, refuse to make an order, for I am not yet prepared to say that where Justices have heard all the evidence and refused to make an order, the woman can go before other Justices and obtain an order. That would be a very different case from the present, and it is not necessary now to decide it. The first order, then, being a nullity, it was open to the Justices in the present case to make the second order, and the indictment being for a disobedience of such second order is good. I beg to be

distinctly understood as not expressing any opinion at present upon the question now pending in The Queen v. the Justices of Gloucestershire, and the other cases in the Queen's Bench.

COLTMAN, J.-The first order, by reason of the defects upon the face of it, became a nullity, and being so, the case stood just as if the Justices had done nothing, and then there was no reason why the other Justices should not have been applied to and the second order obtained. WILLIAMS, J. concurred (21).

Appeal-Parties aggrieved Directors and Governors of Poor under Local ActSignature of Notice.

Where the poor of a parish are under the management of certain governors and directors appointed under a local act, such governors and directors are the parties aggrieved by an order of removal, within the statute 13 & 14 Car. 2. c. 12, and any three of such governors and directors may give a valid notice of appeal under stat. 4 & 5 Will. 4. c. 76.

By a local act, 7 Geo. 4. c. cxxi., the vestry of a parish were empowered to appoint twenty householders, who, together with the rector, churchwardens, and overseers for the time being were to be the governors and directors of the poor of the said parish, and to have the sole care and management of the said poor, with power to bind parish apprentices, to take bastardy bonds, to superintend and repair workhouses, &c. order of removal was addressed to the churchwardens and overseers of this parish, and a notice of appeal against the order was given, signed by three of the governors and directors:-Held, first, that the governors and directors were the parties aggrieved, and therefore the proper persons to appeal.

An

(21) Lord Denman, C.J. here added that he did not mean to say anything about the question pending in The Queen v. the Justices of Gloucestershire, and the other cases, the facts in the present case making it unnecessary to consider the point.

Secondly, that the signature of the notice by three of the guardians was sufficient within the stat. 4 & 5 Will. 4. c. 76. ss. 81,

109.

This was an appeal against an order, under the hand and seal of one of the Metropolitan Police Magistrates, dated the 23rd of October 1846, whereby Ann Tucker, her lawful child, and her other bastard children, were removed from the parish of St. Luke to the parish of St. George, Hanover Square.

The order was addressed to the churchwardens and overseers of the poor of the said parish of St. Luke, and to the churchwardens and overseers of the poor of the parish of St. George, Hanover Square, and recited the complaint of the churchwardens and overseers of the parish of St. Luke that the paupers had come to inhabit and were then inhabiting in the said parish and were actually chargeable to and were then being relieved by the said parish, but contained no statement that they had not been residing in the said parish for five years next before the application for the said order.

The Court of Quarter Sessions confirmed the said order, subject to the opinion of the said Court on the following

CASE.

On the hearing of the appeal the appellants proposed to take an objection to the order, that it did not shew the paupers therein named not to have resided in the said parish of St. Luke for five years next before the application for the said order. The respondents thereupon required the appellants to prove their notice of appeal. The notice was thereupon duly proved, and was in the following form:-"To the churchwardens and overseers of the poor of the parish of St. Luke, in the county of Middlesex. Whereas by a certain order, bearing date the 23rd day of October 1846, under the hand and seal of Peregrine Bingham, Esq., one of the Magistrates of the Police Courts of the Metropolis, sitting at the Police Court in Worship Street, within the Metropolitan Police District, certain persons by the names and descriptions, &c. were ordered to be removed and conveyed from and out of the said parish of St. Luke to the parish of St. George, Hanover Square, in the said county, as the place of their last

legal settlement, by which said order the governors and directors of the poor of the said parish of St. George, Hanover Square, in the said county of Middlesex, are aggrieved. And whereas the governors and directors of the poor of the said parish of St. George, Hanover Square, have duly appealed against the said order to the General Quarter Sessions of the Peace holden in and for the said county of Middlesex on the 12th of January last, and the said appeal was then and there by the said Court of Quarter Sessions duly respited to the then and now next General Quarter Sessions of the Peace to be holden in and for the said county of Middlesex, at which said last-mentioned Sessions the said appeal will be brought on to be heard and determined; and we, the undersigned, being three of the governors and directors of the poor of the said parish of St. George, Hanover Square, do hereby give you notice of the said appeal, and of the respiting thereof, and further that the grounds and matters of the said appeal are as follows: First, that the said order, the examinations upon which it was made, and the notice of chargeability which accompanied the same, are and each of them is bad and insufficient in law upon the faces thereof respectively.

[The second and other grounds are not material to be set forth in this case. They traversed the settlement on which the order was made, and alleged a derivative settlement of the pauper in a third parish.]

And further take notice, that you are to produce at the said next General Quarter Sessions of the Peace the said original order and the said examinations, in order that the same may be respectively given in evidence at the trial of the said appeal. Dated this 19th day of March 1847. Richard Mills, Wright Ingle, A. Duncombe, three of the governors and directors of the poor of the parish of St. George, Hanover Square."

It was then objected, on the part of the respondents, that the individuals who had signed the above notice had no legal authority to do so, and that it could only be legally signed by the churchwardens and overseers of the poor.

It was agreed that the local act 7 Geo. 4. c. cxxi. (1) shall be considered as part of the

(1) Intituled" An act for better paving, lighting, regulating and improving the parish of St. George,

NEW SERIES, XVIII.-MAG. CAS.

case, and that either party might refer to any of the provisions in that act. The signatures to the notice of appeal in this case were the signatures of three governors and directors duly appointed under the provisions of that act. It was contended, on the part of the appellants, that the notice was properly signed. After hearing the question argued by counsel on

Hanover Square, within the liberty of the city of Westminster." Section 1, after reciting that an act was passed (29 Geo. 3. c. 75.) "for the better relief and employment of the poor of the said parish, and for repairing the highways and regulating the beadle, watch, &c., and for paving, cleansing, &c. ;" and another act, 53 Geo. 3. c. 38, for paving and lighting Piccadilly, &c., and enlarging the powers of the former act; and that it was expedient that these two acts should be repealed, and all the powers and provisions for effectuating the purposes aforesaid

should be consolidated into one act, declares those acts to be repealed.

Section 7. provides, "That the vestry of the said parish of St. George, Hanover Square, shall meet upon the 25th day of March in every year, or within fourteen days after, of which meetings notice shall be given in the church of the said parish on the Sunday next before such meetings respectively; and the said vestry at every such meeting shall appoint twenty persons, being householders residing within the said parish, (either out of their own body or otherwise,) and the persons so appointed, together with the rector, churchwardens and overseers of the poor of the said parish for the time being shall be governors and directors of the poor of the said parish, and shall have the sole care and management of the said poor; and the governors and directors, and the said governors and directors so to be from time to time appointed in their stead, shall from time to time meet at the workhouse of the said parish in Mount Street, or any other convenient place, as often as they shall think proper for putting this act in execution."

Section 9. enacts, "That all poor persons within the said parish who are incapable of providing for themselves may be received into any workhouse belonging to the said parish, and shall be under the direction and management of the said governors and directors, who may detain all poor children of the age of six years and upwards, who now are or shall be received into the said workhouse until such children, if boys, attain the age of seventeen years, or, if girls, the age of fifteen years, (in case

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