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Under 6 Geo. II. if the woman is married (1); or dies when discharged.
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. Order of fili- The first step to be taken after the child is born, is to ation, two modes of mak
obtain an adjudication as to the reputed father, and an ing.
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, 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: Ist, 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 re
cognizance 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)
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-pa
rochial place. it be an hamlet [township] which maintains its own
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) Rexo. 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 o. Baker, 1 Bott, 471. Pl. 588. Rex u. Mitford, Cases, Sett. 1 50. i Bott, 489. Pl. 627. The 6 Geo.II. c.5. 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).
plainants, for the act gives the justices power to make such order on the complaint of any other. (1)
Order made upon viva voce testimony.
An order must in general be made
the vivá voce examination of witnesses, and cannot be founded upon affidavit without such evidence. (2)
Of the mother.
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.
4. Ifthemother But where the woman had been examined under is dead, her
6 Geo. II. c.31. and deposed upon oath to the reputed examination under Geo.II. father, before a justice, and afterwards dies, her examinasufficient.
tion 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 conclusives so as to enable the justices to make an order of filiation. (4)
Her death An order purported by the title to be made, “conwhen suffi- cerning a female bastard child, born in the township of ciently averred by reference B. of the body of M. C. single woman, since deceased," to make it evi- and recited that, “ whereas it had appeared to them, dence.
(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) i Const. tit. Bastard, sect. 5.
(2) Rex v. Colbert, Comb. 103.
(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. &e. 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
witness examined, for the order goes on: “ And farther," &c. by which it must be understood, that it further appeared to the justices, that upon the examination of the said M.C., taken on oath, &c. in the presence of R. T., she charged the defendant with being the father, &c. Then it is not a strained inference to make, that the original examination, from whence this appeared to the justices, was produced and verified upon the oath of R. T. Besides, this is a case after appeal to the sessions, where it must be taken that these objections, if founded in fact, would have been proved and admitted ; and that if either not made, or made and over-ruled, they were without foundation in fact. Then if the woman was dead, the proceeding upon her examination afterwards is fully warranted by Rex v. Ravenstone. (1)
As to the objection, that it did not appear that the woman was dead, the contrary must be intended, for the title of the order described M. C. as being deceased; and she was mentioned in the body of it as the said M. C., which refers to the woman said in the title of it to be dead. (2)
It is now settled, that where an illegitimate child is man, form for charged to have been begotten upon a married woman, the competent to justices need only enquire whether the husband's nonbastardize her access is distinctly proved. (3) The wife may in such case child.
give evidence of the criminal conversation; but she shall not be permitted to prove the absence and want of access of her husband, since there is no necessity that can justify her being a witness to these circumstances. (4)
(1) Ante, 294. (4).
(5) Rex o. Bedall, 2 Str. 1076. Cas. Temp. Hard. 379. S.C. ante, Vol. I. 332. et seq.
(4) Rex v. Reading. Cas. Temp. Hard. 79. ante, Vol. I. 535. (2). Andr. 10. Ford's MSS. states the facts of this case thus : “ John Alman was husband of Mary Alman, and leaving her upon the 25th May, 1731, had no access to her from that time till the 25th May, 1733, upon which day she was delivered of a bastard child, begotten by the defendant Reading: all which was proved by the evidence of Mary Alman.