« EdellinenJatka »
6. Child's sex.
6. It must state the sex, or else the name of the child. (1)
7. And ad- 7. It must appear from the words used by the justices judge it born that the child was born in that parish for whose relief the in parish.
order is made; for the birth is the foundation of the juris
diction, it being to that parish only the child can be ultiAllegation mately chargeable. (2) An allegation in the complaint, thereof insufficient.
without adjudication or words of the justices, from whence the place of its birth can be collected, is insufficient, for the complaint may be untrue. (3) An order ran in this form: “We A. and B. two justices of the borough of L., residing within the limits where the parish church is, within which parish the child was born, do,” &c. and quashed; for it only avers that the justices dwelt in the parish in which the child was born, which might not be that to which the relief was ordered. (4)
But formal ad But a formal adjudication is unnecessary. It is sufficient judication un, if it appear any where upon the order, in the words of the justices' words. justices. (5) An order in the following form was held
(1) Rex v. England, 1 Str. 503. It is most usual to state the sex, but I have quoted the case as reported.
(2) Rex v. Cuddington, 1 Bott, 488. Pl. 621. Rex v. Willey, 2 Bott, 490. Pl. 632. Anon. Styles, 368. Rex v. Childers, i Barnard, K.B. 326. Reg. v. Cash, Cas. Sett. & Rem. 59. Rex v. Baker, ib. 471. Pl. 588. Where an order was intitled thus: “ The order of us, A. B. and C.D. justices, &c. concerning a bastard child born in the foreign of R., in the parish of R., and chargeable thereto, of which the churchwardens and overseers of the foreign of R. have made complaint ; it was quashed, because the birth is only in the title of the order and complaint of the officers. In that case, the chief justice is made to say, “ that if there be no adjudication that the child is born in the parish, the order is bad," post, 302. (5). See also Rex v. St. Mary's, Nottingham, 13 East, 57. ante, 292. (1).
(3) Rex v. Godfrey, 2 Ld. Raym. 1362. Rex v. Stanley, Cald. 172. i Bott, 495. Pl. 641. Rex v. Churchwardens of Hexham, i Bott, 489. Pl. 630., where the order was made upon the parish officers to maintain it until the mother should be able to provide for it, the mother not being able to keep it, the father unknown, and the child likely to perish; and quashed, it not appearing that the child was born there.
(4) Rex v. Butcher, 1 Str. 437. i Bott, 491. Pl. 631.
good: 66 The order of us, L. and D., two justices, &c., residing near the parish of H., concerning a bastard child of E. G., born in the said parish of H.,” and adjudging J. T. “ to be the father of the said child.” (1)
And an order which recited that the child was baptized Order reciting in the parish, and did not adjudge that it was born there, in the parish was confirmed. For, as the order says, " she was delivered held good. of a child baptized in the parish,” that, by a reasonable construction, may be taken to be the place of the birth of the child: and as to its being recited, that is sufficient; for, in orders of removal, it is, “whereas upon complaint," and that is looked upon as affirming a fact done; so, “ whereas such a child was baptized in such a parish,” is a sufficient affirmation of the fact. (2) Likewise, where it was excepted to an order that it is no otherwise affirmed, that the child was born in G. than by a "whereas,” which is a recital only. Per Curiam. The whole order is the words of the justices, and in this case a sufficient adjudication of the fact. (3)
8. Also it has been held, that if it appear by the order Adjudge the that the bastard was examined upon oath, and, conse
tlement, when. quently, that being old enough to be sworn, she might have gained a settlement for herself, the justices should ad
(1) Rex v. Fox, 1 Bott, 492. Pl. 637. In the report of this case, from Lord Kenyon's MS., the order was to the following effect: “ The order of us L. and D., two justices, &c. residing near to the parish of H., concerning a male bastard child of E. G. born in the said parish of H.” The objection taken to this part of the order was, that it is not adjudged that this child was born in the parish of H., but only so said in the title of the order. But over-ruled, for it need not be in the adjudication, Rex v. Redshaw, 22 Geo. II. Rex v. Rooper, 26 Geo.II., and it is clearly settled, that if it appear in any part of the order and in the words of the justices, (which is the case here,) it is sufficient.
(2) Rex v. Moravia, 1 Bott, 492. Pl. 636.
(3) Rex v. Gravesend, 1 Bott, 491. Pl. 635.; and that an express adjudication appeared on the proceedings in this case, see Rex v. Pitts. post, 303. (1).
judge the parish to be the place of her last legal settlement. (1)
9. Must aver
9. It should state the child to be chargeable, or likely it chargeable. to become so, to the parish (2), and the order made for its
An order was quashed because it was not said that the child was chargeable to the parish, but to the hamlet. But if it was an hamlet that maintained its own poor, it had been good. (3) So one ordering the father to maintain the child, " for the relief of the governor and guardian for the poor of Colchester,” and not saying “ for the relief of the poor," was quashed. (4)
An order was entitled thus : “ The order of us, A. B. and C. D., justices, &c. concerning a bastard child born in the foreign of Ryegate, in the parish of Ryegate, and chargeable thereto, of which the churchwardens and overseers of the foreign of Ryegate have made complaint. It was objected, that it is an extra-parochial place ; for it appears that the child was born in the foreign of Ryegate. Answer. It is alleged to be within the parish. The foreign of Ryegate is the parish of Ryegate.”. But the order was quashed upon this and another exception. (5)
Adjudge de It must adjudge the party to be the reputed father of fendant to be the said bastard child. An order which pursued the form the reputed father.
in Burn (5), with the omission of the clause following,
(1) Rex v. St. Mary's, Nottingham, Ford's MSS. 13 East, 57 (a). ante, 297. (6)
(2) Comb. 39. Rex v. Nelson, i Vent. 37.; and see Rex v. Inskip with Sowerby, 5 M.&S. 299. ante, 198.(6). 220. (4). But Rex v. Matthews, Salk. 475. Anon. 10 Mod. 84. contra. For it is self-evident, that every bastard child is become chargeable.
(3) Rex v. Mitford, Cas. Sett. 150. i Bott, 489. Pl.627. Rex , Hartington, Upper Quarter, 4 M. & S.559. ante, 299. (4).
(4) Rex v. Howlett, 1 Bott, 491. Pl. 634. i Wils.35. S.C.
“We, therefore, upon examination of the cause and circumstances of the premises, as well upon the oath of the said A. B. as otherwise, do hereby adjudge him the said C. D. to be the reputed father of the said bastard child,” was quashed, as not adjudging C. D. to be the reputed father, notwithstanding the recital in the preceding part, “ Whereas it appears to us, the said justices,”
10. The adjudication must appear to be made by both 10. Adjudicajustices. Two magistrates made an order, and when it tion by both
justices. came to the adjudication, it was, “ we the said justices doth adjudge,” instead of “ do adjudge.” After the case had depended two terms on this objection, and been seve
ral times stated, and the record in Rex v. Tulwood exi amined, the Court on the objection quashed the order.(2)
11. If the reason assigned for the adjudication be in- 11. Need not sufficient, the order is bad.
assign reason for the adjudi
cation, but if it Upon an order of bastardy, it was stated, that the hus- assign one in
sufficient it is band had been absent six years, and that during his ab- bad. sence, the defendant had carnal knowledge of the wife, and, therefore, we adjudge him to be the putative father. But by the Court. This order must be quashed; for his lying with her is not a sufficient reason to infer him the father of this child; and though the justices need not show the ground they go upon, yet if they do, and it appears no sufficient ground, their order will be bad. (3)
12. It must specify the sum which it requires the party 12. Must speto pay in relief of the parish. It may direct a weekly tenance to be payment to be made on a particular day in the week, al- paid. though the first week from making the order is not com
(1) Rex v. Pitts, Doug. 662.
plete on that particular day (1); and if no day be mentioned, it is payable at the commencement of the week. (2) And if it directs that a certain sum be paid towards the expences of the parish on account of the child, it will be
good, although it do not particularise what the expences Order of sum were. (3) An order requiring the defendant “to pay in gross for ex- nine pounds in gross immediately upon sight of the order,
and after that, so much weekly," is good; for the gross
sum might be only for indemnifying the parish for money Instances of previously expended. (4) So likewise one for a sum in such orders
gross, “ for maintenance and other incident charges." (5) sustained.
But if it had only stated it to be “ for maintenance,” it had been too general. (6) So an order adjudging 36l. to be paid, part whereof had already been paid, for the maintenance of the child, and other incident charges and expences, held good. For the words, “ other incident charges," must be incident to the maintenance; and the rather, as a part thereof is already paid. Wright J. said, that at first he was of a different opinion, and thought the words, “ incident charges,” extremely general; but on looking into it, he found there were orders as general as this is. (7)
An order to the putative father “ to pay the churchwardens and overseers of the parish 50s. for the midwife, and other charges, and for the maintenance of the child from its birth, till the day of making the order, and from that day so much a-week, so long as the child shall con
(1) Rexv.Weston, i Bott, 487. Pl. 619.; and quære, if the payment should not be weekly as the statute directs. For semb. an order to pay monthly is bad. Rex v. Sharpe, i Sid. 222. but adjourned.
(2) Rex v. Fearnley, 1 Term Rep. 316. ante, 265. (3).
(5) Rex v. Gravesend, 1 Bott, 491. Pl. 635. upon the authority of Reg. v. Odham, and see Rex v. Eve, 2 Show. 256. But Rex v. Colbert, i Bott, 486. Pl. 615. is contra.
(6) Rex v. Gravesend, supra.