Order made

upon vivâ voce testimony.

Of the mother.

4. Ifthemother

is dead, her examination

sufficient.

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 vivâ 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 under 6Geo.II. 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)

Her death when suffi

ciently averred

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,” to make it evi- and recited that, "whereas it had appeared to them, dence.

by reference

(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. 15.

(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

witness examined, for the order goes on: "And further," &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 charged to have been begotten upon a married woman, the justices need only enquire whether the husband's nonaccess is distinctly proved. (3) The wife may in such case 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).

(2) Rex v. Clayton, 3 East, 58.

(5) Rex v. Bedall, 2 Str. 1076. Cas. Temp. Hard. 379. S. C. ante, Vol. 1. 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.

mony bad.

When an order, therefore, was made upon the oath of Order upon her a married woman alone, who swore that her husband was single testiin gaol long before her bastard child was begotten, and ever since, and that she had no access to him, and that R. got the bastard, it was quashed. Per Curiam. It was said by Lord Hardwicke, in Rex v. Reading (1), that although a wife may be admitted to prove the fact of adultery, she shall not be admitted to prove that her husband had no access, because that can be proved by other persons, and an order of bastardy, therefore, could not be made on her testimony alone. The case of Rex v. Bedall (2) differs from this, for there were witnesses to prove the husband had no access; and as the justices have determined solely on the evidence of a wife, the order must be quashed. (3) But if other witnesses are examined to prove the husband's nonaccess, it does not vitiate the order that the wife is likewise examined to that fact. (4)

The putative father's presence, during the woman's examination, is unnecessary to the validity of the order. (5) But he must be summoned to appear previous to an order being made (6); and a summons by another justice who does not join in the order is sufficient. (7)

There were other witnesses who proved that the husband was within seven miles of his wife within that time." See Rex v. Luffe, 8 East, 196. n. (2). Lord Ellenborough agrees to the doctrine in the text, but adds, "By a parity of reasoning it should seem, that if she be admitted of necessity to speak to the fact of the adulterous intercourse, it might be also perhaps competent to her to prove that the adulterer alone had that sort of intercourse with her by which a child might be produced within the limits of time which nature allows for parturition." Rex v. Luffe, ib. 203.

(1) Ante, 294. (4).

(2) Ante, 294. (3).

(3) Rex v. Rook, 1 Wils. 340.

(4) Rex v. Bedall, ante, 294. n.(3). Rex v. Luffe, 8 East, 193.

(5) Rex v. Upton Gray, Cald. 308. 2 Bott, 479. Pl. 599.; and see

Rex v. Martyr and Fulham, 13 East, 55. ante, 288. (3).

(6) Rex v. Cotton, 1 Sess. Cas. 179.

(7) Rex v. Neale, 1 Bott, 482. Pl. 605. post, 308.

Father s prewoman's exsence during amination unnecessary.

Must be summoned previous to making order.

Woman's examination,

taken before

As the examination of the woman is a judicial act, both justices must be present when it is taken (1), although it is sufficient if one examine her. (2) If she refuse to be examined, the justices may commit her to prison (3); but if she refuses to they must not only be together at the examination, but when they make and sign the commitment. (4)

two justices. May commit

answer.

Adjudication without examining the mother.

Father's confession.

If the mother die previous to an order of filiation being made, and without having been examined under 6 Geo.II. c.31. one may be afterwards made upon the reputed father, by means of other evidence. Cases will rarely occur in which justices can extract sufficient proof from other sources to warrant them in making it; but when such testimony does exist, as supposing the man to have acknowledged the child to be his, and to have maintained it as such, it seems enough to warrant an adjudication that he is the putative father. For though the justice cannot compel him to give testimony in this case, yet there is no fault in admitting him to do it. (5)

(1) Rex v. Beard, 2 Salk. 478. 6 Mod. 180. 1 Bott, 478. Pl. 595. 1 Bott. 478. Pl. 598.

(2) Rex v. West, supra.

1 Bott, 477. Pl. 594. Rex v. West, Billings v. Prinn, 2 Black Rep. 1017.

(3) This appears to be taken for granted in Billings v. Prinn, ante, (1).
As to the form, see ante. Their right to commit seems undeniable,
where there is a refusal to answer on enquiry respecting the putative
father, under 49 Geo.III.; for such questions do not tend to criminate
the woman. But it does not seem decided, whether magistrates, when
proceeding under 18 Eliz. c. 3. can compel a woman to answer questions
which go to prove
her to be the mother of an illegitimate child, as her an-
swer may subject her to both civil and ecclesiastical punishment. A dis
tinction however may arise where the woman resides with the child, and
both are chargeable, for, in that case, the right to examine seems inci-
dent to the right to enquire into their settlement as paupers. See ante,
chap. xxix. sect. 1. and also the Vagrant Act; and, indeed, possession of
the child seems to amount to presumptive evidence, that the woman
who has it is the mother.

(4) Billings v. Prinn, ante, (1). But see ante, Vol. I. 54. (8),
(5) Rex v. St. Mary's, Nottingham, 15 East, 57.