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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 ex- Father s preamination, is unnecessary to the validity of the order. (5)
woman's exBut he must be summoned to appear previous to an order amination unbeing made (6); and a summons by another justice who necessary: does not join in the order is sufficient. (7)
Must be summoned previous to making order.
There were other witnesses who proved that the husband was within
(1) Ante, 294. (4).
(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.
Woman's ex- As the examination of the woman is a judicial act, both amination, taken before justices must be present when it is taken (1), although it is two justices. sufficient if one examine her. (2) If she refuse to be exMay commit amined, 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)
Adjudication without examining the mother.
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. i Bott, 477. Pl. 594. Rex v. West, 6 Mod. 180. 1 Bott, 478. Pl. 595. Billings v. Prinn, 2 Black Rep. 1017. i Bott. 478. Pl. 598.
(2) Rex v. West, supra.
(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 answer may subject her to both civil and ecclesiastical punishment. A distinction however may arise where the woman resides with the child, and both are chargeable, for, in that case, the right to examine seems incident 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).
The bastard likewise may, if competent in other respects, be examined upon oath; for though it would be ridiculous to examine her as to the certainty of her father, yet she may properly enough be examined as to some circumstances relating to it; as, whether the man when accused with it had acknowledged the child to be his, or whether it was constantly reputed to be so, and such like. (1)
If the party obeys the summons and
Defendant's make his defence against the charge. But if he will not appearance to
the summons. attend himself, there is no reason that the justices should If he do not hear any witnesses or defence made for him; for if that appear, can
make no dewere allowed no offender of this sort would appear. It is fence. but as this court (2) does, when orders of bastardy are removed hither by certiorari, which never allows any exceptions to be taken to the order, unless the party attend in person. (3)
But it seems a reasonable exception to this rule, that where the person charged is under any incapacity of attending by illness or otherwise, the justices may, and ought to receive evidence on his behalf. (4)
If the justices, upon hearing the evidence on both sides, Order of basare satisfied that the person charged in the woman's ex- tardy when
made. amination, is father of the child, they should proceed to fix him with it by an order of filiation. It may be made at any distance of time, as fourteen years after the child is born (5), and notwithstanding the mother's death. (6)
(1) Rex v. St. Mary's, Nottingham, 13 East, 57.
(4) 1 Burn's Just. tit. Bastard, 255.; cites Rex v. Taylor and Neale,
(6) Rex v. Ravenstone, Term Rep. 373. ante, 292. (4).; also Rex v. St. Mary's, Nottingham, ante, (1)., where the daughter when affiliated was thirty-five years old.
Form of an Order of Filiation. (1)
1. Order may
1. An order may include more bastard children than be on both
one, if begotten by the same father upon the same moparents, and include several ther. (2) So likewise it may be made upon the mother(3); of their chil
and it may be a joint order upon the mother and reputed dren.
father requiring each of them to pay a certain proportion of the child's maintenance. (4) And in one case, an order that the mother should maintain her child till seven years old, and the father should allow 1s. per week during that time, was quashed for another defect, but no objection was taken on this account. (5)
2. State the 2. An order must state the authority of the justices. justices' juris- The county, therefore, should be set forth, to show that
. county. the fact arose where they have jurisdiction. But if it apSufficient in the margin.
pear in the margin that is sufficient; for the reason why
the county should be in the margin, is to show that the Byjustices of fact arose within the justices' jurisdiction. (6) And where a liberty.
an order appeared to be made by two justices of the liberty of the Tower of London, which has a separate commission of the peace, with officers, and quarter sessions of its own, Lord Hardwicke observed, I do not know whether the want of an averment in what county the liberty is, be an exception on 18 Eliz. c.3.; however, that is fully cleared up by 3 Car.I. c.6.(7): and the court held the original order good as to this exception. (8)
(1) See ante, title Order of Removal, 206. et seq., and of Maintenance, 259, &c.
(2) Rex v. Skinn. 1 Bott, 470. Pl. 587.
(5) Rex v. Willey, 1 Bott, 490. Pl. 682. See also Reg. v. Collins, 11 Mod. 178. But in Burnell's case, 1 Vent. 48., and in Sherman's case, ib. 211., such orders were held bad.
(6) Rex v. Messenger, 1 Bott, 491. Pl. 633.
(7) Which gives justices of a liberty the same jurisdiction as justices of a county.
(8) Rex v. Messenger, ante, (6).
An order must be made by two justices, but is good if Must be two or
more justices. made by more. (1)
And it need not appear that they were justices in or Need not be of next the limits where the parish church is; for the words the limits, &c. of the statute are only directory, and were so held in Rex v. Rooke. (2)
3. It is generally expressed to be made upon the com- 3. Need not be plaint of the churchwardens and overseers, but this is not on complaint
of churchwarnecessary. (3)
Also, an order stated to be made on the application and complaint of the overseers of the poor of H. U. Q., in the parish of H., is sufficient, without stating it to be a township maintaining its own poor. (4)
4. It is usual and proper to state that the defendant 4. Proper but was summoned, and that he either appeared in consequence not essential, thereof, or neglected to do so. But it is not in strictness fendant's sumnecessary
that this should be averred on the face of the mons. proceeding, as the court will intend that he was, unless the contrary appear. (5)
5. The examination of the woman on oath, as to her 5. Woman's delivery of a child, and by whom it was begotten. (6)
(1) An order made by five justices. Hatton's case, 2 Salk. 477.
(2) Rex o. Skinn. 1 Bott, 470. Pl. 587. Rex v. Baker, S. P. ib. 471. Pl. 588. And see Rex v. Crosse, Comb. 289., where this exception was taken to an indictment, for refusing an apprentice, and over-ruled.
(3) Rex v. Fox, 6 Term Rep. 148. Rex v. Bucknall, 1 Barnard, K. B. 261. Rex v. Baker, i Bott, 471. Pl. 588. But Rex v. Nottingham, 2 Bott, 478. Pl. 597. is contra, ante, 292. (1)
(4) Rex v. Hartington, Upper Quarter, 4 M. & S. 559.
(5) Rex e. Clegg, i Str. 475. Rex v. Clayton, 3 East, 58., and the cases then cited, respecting similar orders made by justices of the peace, upon other subjects. See also Rex v. Hawkins, Poor Set. 127.
(6) But see how far this applies where the mother is married, ante 294, &c.