Sivut kuvina

however distant, during the magistrate's continuance in the commission by whom it was granted. Where, therefore, the putative father of a bastard had been arrested under a warrant, and agreed to give a bond of indemnity, with two sureties, but one of the parties not executing the bond, he was arrested a second time under the same warrant, it was held legal. (1)

When the reputed father is brought by warrant before Proceedings the justice, the magistrate has no power to examine into when person charged apthe merits of the case, but is bound by the express terms pears. of the statute to commit him to the common gaol or house of correction, unless he gives security to indemnify the parish, or enters into a recognizance, with sufficient surety, to appear at the next sessions, &c. and abide and perform such order or orders as shall be made in pursuance of the 18 Eliz. c. 3. except in certain cases provided for by 49 Geo.III. c.68. in which his appearance may be dispensed with. These are, 1. When one magistrate certifies under his hand, to such sessions, that it was proved to him, on oath of a credible witness, either that the woman was not delivered, or was so, within the month previous to the day of holding the sessions. 2, When two justices certify to the next; or if the woman shall not be delivered at the next, then to the immediately subsequent sessions, that an order of filiation has been made, or that it is unnecessary on account of the child's death, or for other like sufficient reasons; and the sessions are required, in the first cases, to respite, and in the second, to discharge the recognizance, without requiring the personal attendance of the father, or hist surety. (2)

(1) Dickson v. Brown, Peake's Ni. Pri. Cas. 234.; and see Mayhew v. Parker, 8 Term Rep. 110.

(2) As to the effect of this security or recognizance and remedy thereon, see post. 317. sect. 10., and the party's appearance at sessions, under the commitment, post.

[merged small][ocr errors]

Recognizance when discharged.

Oider of filiation, two

modes of making.

Under 6 Geo.II. if the woman is married (1); or dies before delivery, or miscarries, or appears not to have been with child, the recognizance shall be discharged by the sessions, or, if in custody, the man may be immediately released by one justice. (2) He may likewise be discharged by a single magistrate after summoning the overseers, if no order of filiation is made within six weeks after the woman has been delivered. (3) And these provisions do not seem altered by 49 Geo. III. unless possibly they may be considered as constituting those "other like sufficient reasons," referred to in the statute, which being certified by two justices to the sessions, shall enable the latter to dispense with the personal appearance of the father and his sureties. (4)


Of the Order of Filiation out of Sessions.

THE first step to be taken after the child is born, is to obtain an adjudication as to the reputed father, and an order requiring him and the mother to maintain it. This can be effected in all cases where the child is likely to become chargeable, whether the mother be married or single (5), and the order may be made in either of the

(1) The words of the act are general, "If she shall be married before she shall be delivered." This does not, at first view, appear to make the putative father's release depend exclusively upon an intermarriage between the woman and him, but rather imports, that he should be liberated if the woman marry at all. But as the statute has been held to extend to the bastards of married women, notwithstanding the use of the word "single," that interpretation seems to require, that the release of the person charged should be confined to the single case of his marrying the woman. In that event, the operation of the statute ceases, because the reason for it is done away. For if "the issue be born within a month or a day after marriage, between parties of full lawful age, the child is legitimate." Co. Lit. 244. a. See ante, Vol. I. 532.

(2) 6 Geo. II. c. 31. s. 2.,

(3) The recognizance taken under 49 Geo. III. is likewise confined to cases when the complaint is made before the child is born.

(4) But see sect. 6.

(5) See Rex v. Luffe, 8 East, 193. As to when an illegitimate child is to be considered as likely to become chargeable. See Rex v. Alveley, 3 East, 563, ante, 198. (2). Rex v. Nelson, and the cases cited, post. 302. (2).

following ways: 1st, By two justices, under 18 Eliz. c. 3. 2d, By the justices at sessions, under 3 Car.I. c. 4. s. 15.

But no order can be made unless the child was born alive. (1)

The 18 Eliz. c. 3. s. 2. empowers two justices out of 1. By two jussessions to take order, as well for the punishment of the tices. mother and reputed father, as for the relief of the parish. For the latter purpose they may charge the mother, or reputed father, with payment of money weekly, or other sustentation for the child's relief. (2)

An order of filiation may be made by two justices, un- Though party der 18 Eliz. c.3. although the putative father has been bound in recognizance unbound over to appear at the quarter sessions, under der 49 Geo. III. 49 Geo.III. c.68. s.2. For that statute not only sup- c.68. poses that such an order may be made, but requires that the recognizance shall be discharged, upon its being certified to the sessions in writing under the hand of two justices that such order has been made. (3)

over extra-parochial place.

But they have no authority to make an order, where No jurisdiction the child is born in an extra-parochial place (4), unless it be an hamlet [township] which maintains its own poor. (5)

And where an order is founded on the 18 Eliz. c.3. it is not required that the parish officers should be the com

(1) Rex v. De Brouquens, 14 East, 277.

(2) Supra, 290. (5).

(3) Yet the condition of the recognizance is to appear at the next sessions, and abide and perform such order or orders "as shall then be made," in pursuance of the 18 Eliz.

(4) Rex v. Baker, 1 Bott, 471. Pl. 588. Rex v. Mitford, Cases, Sett. 150. 1 Bott, 489. Pl. 627. The 6 Geo.II. c.3. gives the justices jurisdiction upon application "by the overseers of such parish, or by any substantial householder of such extra-parochial place,” i. e. to which the bastard shall be chargeable, or likely to become so.

(5) Rex v. Mitford, ante, (4).

[blocks in formation]

plainants, for the act gives the justices power to make such
order on the complaint of any other. (1)

An order must in general be made upon the vivá voce examination of witnesses, and cannot be founded upon affidavit without such evidence. (2)

Where made upon the reputed father, the mother's testimony, if living, is generally if not always resorted to; and if she be single, it is usually the sole evidence.

But where the woman had been examined under 6 Geo. II. c.31. and deposed upon oath to the reputed father, before a justice, and afterwards dies, her examination thus taken before a magistrate, being in the course of a judicial proceeding, is admissible evidence, like the depositions taken under the statute of Philip and Mary(3); and being admissible, and uncontradicted by other evidence, it seems conclusive, so as to enable the justices to make an order of filiation. (4)

An order purported by the title to be made, "concerning a female bastard child, born in the township of B. of the body of M. C. single woman, since deceased,” and recited that, "whereas it had appeared to them,

(1) Rex v. Bucknall, 1 Barnard. K. B. 261. and see post, 299. (3) But in Rex v. St. Mary's, Nottingham, it was thought by Page, Probyn, and Lee Justices, absente C. J., a fatal exception to an order that the complaint did not appear to have been made by the parish where the child was born, but the contrary rather appeared, for it was stated that she was a casual poor; and by 18 Eliz. c.3. no parish but that where the child is born has a power given of complaining, and she might have been born in a parish that lies in another county, and then these justices could not have any power to make their order. East, 10 Geo.II. Ford's MSS. 13 East, 57. (a) 1 Const. tit. Bastard, sect. 5.

(2) Rex v. Colbert, Comb. 103.

(3) 1 & 2 Ph. & M. c. 13.

(4) Rex v. Ravenstone, 5 Term Rep. 373., where the order was made at the quarter sessions, but the principle applies equally to one before two justices. See Rex v. Clayton, 3 East, 58. and ante, 207.

the said justices, as well upon the complaint of the churchwardens, &c., of the township of B. &c. as upon the oath of R. T. of B. &c. that the said M. C. about six weeks ago then last past, was delivered of a female bastard child, in the said township of B., and that the said bastard child was then chargeable to the said township, and likely so to continue; and further, that, upon the examination of the said M. C. upon oath, before A. B. (another justice of peace) dated 11th of May last past, in the presence of the said R. T., the said M. C. upon her oath, charged G. C. of, &c. with having begotten her with the child of which she was then pregnant; they, therefore, upon the examination of the cause and circumstances of the premises, as well upon the oath of the said M. C. before birth so taken, as aforesaid, and also upon the oath of the said R. T. did adjudge the said defendant to be the reputed father of the said bastard child," &c.

It was objected to the order, that the material fact of filiation could only appear by the woman's testimony, if living; and, according to Rex v. Ravenstone, by her examination in writing, taken under the statute, if dead. But it does not appear that she was dead at the time of the examination; nor, if dead, that her examination had been taken in writing, unless by inference, from its being stated to be dated; and if written, it does not appear that it was proved, or read over to the magistrates when the order was made. It rather seems, if any evidence at all were given, it was by the parol testimony of R. T.

But by Lord Ellenborough C. J. The law has been long settled, that every intendment shall be made in favour of an order of justices. Now it is not a very forced intendment, that the examination of M. C., which is described as bearing date the 11th of May, &c. was in writing, for it must be something on which a date could be impressed. Then it must also be produced to those who so describe it. Nor does it necessarily appear, that only the fact of the examination of M. C. was testified by R. T. the


« EdellinenJatka »