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a more prompt remedy for securing the putative father, and better security for his future appearance to answer to an order of filiation.
Where parishes are united under 22 Geo.III. c.83. the Guardian. guardian thereby appointed is substituted in the overseer's place, and one who is de facto such, being so received and acknowledged by the parish, though not legally appointed, is competent to apply in that character to a justice of the peace to take the examination of a single woman pregnant with child, in order to filiate the bastard. (1)
49 Geo. III.
As the 49 Geo. III. c. 68. adopts the language of the Object of 6 Geo. II. it seems intended in furtherance of the same purposes, and the alterations which have been made in the law by that statute, will be pointed out under the proper heads.
The jurisdiction to enquire into this complaint is con- Justices' jurisfined to the justices of the county or place within which the parish or place to which the child is likely to be chargeable is situated (2); and the mother, with the concurrence of the parish officers, may make the charge.
ation to be
made by the
The mother may make this declaration at any time, after she discovers that she is with child. But she cannot be compelled to answer questions relative to her pregnancy mother, under before delivery, nor can she be sent for against her will, and examined by the justice, until one month after it. (3)
6 Geo. II.
It is laid down by Dalton, that any justice may bind Of secreting those who procure the putative father, or the mother, to run away, (so that an order cannot be made or performed,) to their good behaviour, to be forthcoming at the next
(1) That is for proceedings against the putative father under 49 Geo. III. c. 68. Rex v. Martyr, 13 East, 55.
(2) Rex v. St. Mary, Nottingham, ante, 286. (3).
(3) 6 Geo. II. c.31. s. 4. But see 35 Geo. III. c. 101.
general gaol delivery or quarter sessions. (1)
But it is said that no other person than the mother, such as a nurse, &c. is compellable to disclose the father's name, or to give security to the parish. (2)
It seems as if proceedings before a magistrate, under 6 Geo.II. and that which now takes place under 49 Geo.III. may be altogether ex parte. No summons need issue to bring the person accused before the justice, and it appears unnecessary that he should be present at the woman's examination. They may thus resemble the power of holding to bail by affidavit in a civil action, so that if the examination be sufficient to charge the supposed father, the justice or justices should issue a warrant to apprehend him. (3) This warrant is not like a writ issuing out of the civil courts, in being returnable at a certain period, after which time its authority ceases. It continues in force until it is fully executed and obeyed; before that is edofthe charge done, the party may be arrested under it at any time, by a previous
Where reason able grounds are stated to shew that he
is likely to run
away if appris
(1) Quære, whether it be an offence to secrete the woman, with her own consent, in order to prevent her giving evidence about the father, for there is no power to compel her to be examined before her delivery? Rex v. Chandler, 1 Str. 612. 2 Lord Raym. 1568. 1 Bott, 468. Pl. 583. But the ground of demurrer was an averment, that the woman was big with an illegitimate child," which cannot be, for no child is illegitimate until after the delivery, as the law contemplates that, by an intervening marriage of the parents, it may be born in lawful wedlock.
(2) Rex v. Southby, 1 Bott, 472. Pl. 589. But quære whether they are not compellable to give evidence before the justices making an order of filiation.
(5) But per Lord Ellenborough C. J., when the complaint is merely for non-payment of money, it is the general duty of magistrates to issue a summons in the first instance before they grant a warrant of apprehension, and it requires very strong words to take away the necessity of a summons. Rex v. Martyr & Fulham, 15 East, 31. If this rule is to be considered as extending to cases of original complaint under 49 Geo.III. it will in many cases defeat the object of the statute, by operating in furtherance of the putative father's escape, instead of being a means to indemnify the parish by facilitating his apprehension. But quære whether the justice should not summon the party in all cases unless he has reason to conclude that the person charged is likely to abscond. See post. 295.
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 his 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.
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. 332. (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, 195. 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 supposes 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)
But they have no authority to make an order, where No jurisdiction the child is born in an extra-parochial place (4), unless over extra-parochial place. 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).