« EdellinenJatka »
"shall give security to the parish to perform the order," it is bad as to that. (1)
16. By 49 Geo.III. c. 68. s.1.4. the putative father is made liable to pay all reasonable charges and expences incident to the birth of the child, and also the reasonable costs of apprehending and securing him, and likewise those of the order of filiation, all which are to be at the discretion of the justices or court making the order of filiation, who are authorized to order payment of the whole or part thereof, provided that the costs of apprehending and securing the father and of the order of filiation shall not in any case exceed 107. But to render him thus liable, the child must be born alive; for all the provisions in the several statutes respecting bastardy assume that the child is born alive, and many provisions in this as well as the former acts are inapplicable to a dead child. (2)
16. Nor father to give secu
Of Orders of Filiation by the Justices at their Quarter
3 Car. I. c. 4.
BEFORE 3 Car. I. c.4. the sessions had no authority to Power by meddle in the case of bastardy, till the two next justices, according to the statute of 18 Eliz. c.3. had made an order therein; and then, and not before, the justices in sessions might make a new order, &c. otherwise not. (3) But they
(1) Rex v. Fox, 1 Bott, 472. Pl. 590. and the cases in the margin. Rex v. Eve, 2 Show, 256. See Rex v. Sharpe, 1 Sid. 222. Smith's case, 2 Bulst. 342. Also post, 314. (5).
(2) Rex v. De Brouquens, 14 East, 277.
(3) Slater's case, Cro. Car. 471. 1 Bott, 498. Pl. 727. The authority of the sessions, where it is not expressly given by statute, is thus declared by Lord Hardwicke: "If authority be given to two justices of peace, to do an act, and no appeal is given, then it may commence at sessions; but if an appeal be given, then it cannot be begun at sessions. Rex v. Bartlett, 1 Bott, 306. Pl. 320.
Orders of bas
have authority to make an original order in such cases, under the first-mentioned statute. (1)
Original orders of this sort are not commonly made at tardy by ses sessions; the usual way being, to bring the matter before that court by way of appeal, from an order of two justices. (2) The same formality and precision is required in orders of this kind when made there, as if they had been made by two magistrates out of session.
Must summon party.
Order need not set it forth.
Order on con
ed as to the constable.
It is essential to right and justice, that the party should be summoned previous to their making an order upon him; but that summons need not be set forth on the face of the proceeding, as the superior court will presume there was one, unless the contrary appear. (3)
Where the putative father was apprehended upon a stable and the warrant, and the constable let him escape, an order of mother, quashsessions made upon the constable, to pay 31. towards the expences the parish had been at, and 1s. a week towards the maintenance of the child, and the mother to pay 6d. a-week, was quashed, as to the constable, the justices not having authority to make it, but confirmed as to the mother. (4)
May quash or
It seems as if the justices may at the same sessions der on appeal, quash, upon appeal, an order of bastardy made by two
and make an
(1) Slater's case, ante, 307.(3). Wood's case, 2 Bulst. 355, Rex v. Messenger, 1 Bott. 491. Pl. 633. Rex v. Clegg, 1 Str. 475. Rex v. Greaves, Dougl. 632. Rex v. Price, 6 Term Rep. 147.
(2) They are said to be very rare. Per Pratt C.J., Rex v. Clegg, supra, (1). But the practice seems to have altered in this respect, in some counties, since statutes 6 Geo. II. c.31. and 49 Geo. III. c. 68.
(3) Rex v. Clegg, supra, (1). Pratt C.J. at first contra. Rex v. Clayton, 3 East, 58. and see ante, 299. (5). Rex v. Hawkins, Poor Sett. 127.
(4) Reg. v. Ridge, 11 Ann. 1 Bott, 499. Pl. 651.
justices, and also make an original one upon another person, for the same child. (1)
Of appealing against Orders of Filiation and Maintenance.
THE appeal given by the 18 Eliz. c.3. to the party ac- Appeal to what cused, arose only from his being bound over to the sessions, and the parish enjoyed no such power. (2)
49 Geo. III. c.68. s. 5. gives an appeal to any person or 49 Geo.III. persons aggrieved by an order made by justices under c. 68. s.5. the provisions of the act not originating in sessions, to the next sessions for the county where the order is made, on giving notice to such justices or one of them, and to the overseers of the parish on whose behalf the order is made, or one of them, ten clear days before the quarter sessions, of his, her, or their intention to appeal, and the cause and matter thereof, and entering into a recognizance within three days after such notice before some justice for the county, with sufficient surety conditioned to try such appeal, and abide the judgment and order of and pay such costs as shall be awarded by the sessions, who are empowered to hear and determine the appeal, and give relief and costs to either party in their discretion.
And there must be ten clear intervening days of notice Ten clear days. exclusive both of that of serving the notice, and the day
of holding the sessions. (3)
It is requisite that the causes and matters of the appeal should be specified in the notice, the object of the legislature being that the respondents should know precisely what
(1) Burrell's case, 1 Mod. 20. Pridgeon's case, 1 Bulst. 255. Pl. 648. Rex v. Smith, 2 Bulst. 342.
(2) Per Lord Hardwicke, Rex v. Jenkin, Cases Temp. Hardw. 301. post, 315. (4).
(3) Rex v. Justices of Herefordshire, 3 B. & A. 581.
objections they have to meet. Upon this ground the ses sions were held to have acted rightly in refusing to hear an appeal against an order of filiation upon the following notice: "This is to give you notice, that I, H. N. of L. do intend at the next general quarter sessions, &c. to commence and prosecute an appeal against an order of filiation made by you, &c. whereby I was adjudged to be the father of a female bastard child, born on the body of E. R. and chargeable to the parish of S. in the said county;" for it does not contain any information of the cause and matter of appeal; it is merely a description of the order and not of the objections which the party charged intended to make to it. (1)
But as the act 49 Geo. III. c. 68. does not expressly Verbal notice. require the notice of appeal to be in writing, a verbal notice to the justices taking the recognizance of the parties' intention to appeal, and of the cause and matter thereof, is sufficient. (2)
Time for ap
Where an order of filiation has been made, and the time pealing passed. for appealing against it is passed, it cannot be enforced under 18 Eliz. c. 3., but the justice of peace must proceed under 49 Geo. III. c. 68. s. 3. by commitment for three months. (3)
By sect. 7. No appeal in any case relating to bastardy shall be brought, received, or heard at the said quarter sessions, unless such notice shall have been given, and recognizance entered into in manner aforesaid.
The 18 Eliz. directs the appeal to be made to the next general sessions, after the party has notice of the order,
(1) Rex v. Justices of Oxfordshire. 1 B. & C. 279.
(2) Rex v. Justices of Salop, 4 B. & A. 626.; and see Rex v. Justice of Surrey, 5 B. & A. 539.
(3) Ex parte Addis, 1 B. & C. 87.
and made default in not performing it. (1) This meant at the next general sessions for that part of the county in which the order was made, and not the first sessions, which might happen in a distant part of it. (2) If such an order was made by two justices, during sessions' time, the appeal ought not to be to such sessions, but to that next ensuing. (3) An appeal to the next quarter sessions after notice, was once held to be bad, because under 2 Hen. V. c.4. a general sessions, to which it is directed to be made by 18 Eliz. might have intervened, and in that case, the appeal would not have been to the next general sessions. (4) But in a more recent case, an order was made But now on the 27th March, and the reputed father appealed to the held contra. next general quarter sessions, held 22d April, when the original order was quashed. Both orders being returned by certiorari, it was moved, on the authority of Rex v. Shaw (5), to quash the order of sessions, that court having no jurisdiction, because a general sessions might have intervened. But Lord Kenyon observed, that the case cited did not appear to be one of the most authentic in Salkeld's reports. It is a general rule, that every intendment shall be made to support an order of justices; and as it does not appear that the general quarter sessions held on the 22d April, were not the sessions next following the 22d of March, we will not presume it, for the purpose of quashing the order of sessions; it was therefore affirmed. (6)
(1) It seems from the words of 18 Eliz. c. 3. that the justices' power to commit, or to take a recognizance, arises from the party's not observing or performing the order. The consequence of which seems to be, that the appeal lies not to the first general sessions after the order is made, but to the first general sessions after it is disobeyed. Dalt. 45. (2) Rex v. Coyston, 1 Sid. 149. 1 Bott, 495. Pl. 642.
(3) Burrell's case, 1 Mod. 20.
(4) Rex v. Shaw, 2 Salk. 482. 1 Bott, 496. Pl. 644. Rex v. Brown, Ib. Pl. 643. 2 Salk. 480.
(5) Supra, (4).
(6) Rex v. Guardians of the Poor of Chichester. 3 Term Rep. 496.