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objections they have to meet. Upon this ground the sessions 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. Justices of Surrey, 5 B. & A. 539.
(3) Ex parte Addis, i 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
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. i 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).
Sessions must hear all the circumstances on appeal.
As an appeal brings the whole matter both of law and fact before the justices at the sessions, the parish officers must, unless the party waives it by the tenor of his notice, be prepared and able to sustain their order, by sufficient evidence (1); and it is equally competent to the party interested to resist the fact, as to take such objections as occur to himself or his counsel upon the law. But if the objections are formal only, the sessions have power to amend them, under 5 Geo. II. c.19. (2)
How far they The majority of the justices, upon hearing the case, will may quash or either confirm or quash the order, according to their affirm.
judgment: and where an order is substantially good, but directs something additional, which is illegal, they may
quash such defective part, and affirm the remainder. (3) Of Costs. But their order must be final, and either affirm or disallow
that which is appealed against (4); and they cannot award costs to be taxed by the clerk of the peace. (5)
Of removing Orders of Bastardy into the Court of King's
Bench, for the Purpose of quashing them.
Of removing orders by certiorari, when defendant at large.
If the defendant is dissatisfied with any order made upon him, either by two justices, or by the sessions, he may remove it into the court of king's bench by writ of certiorari.
When he is not in custody for disobedience of the or
(1) And they must begin by supporting it. Rex v. Knill, 12 East, 50.
(2) As to the power of amendments under that statute, see post, title, Appeal.
(5) See infra, sect. 8. the power of the king's bench to do this.
(5) Rex v. Skinn. 1 Bott, 470. Pl. 487. And see Rex v. Sweet, 9 East, 15. Rex v. St. Mary's Nottingham, 13 East, 57.
der, he may remove it, if made by two justices, although there has been no appeal (1) to the sessions.
But where a person was in custody for disobeying an If in custody, order of bastardy made at the sessions, the court seemed must sue ha
beas corpus. strongly inclined to think that no certiorari ought to have been granted to remove the order; but, that the proper mode of obtaining relief, if the defendant was entitled to it, was by habeas corpus, on a return to which the causes of commitment would be specified, upon which the court would be enabled to form an opinion, whether or not those causes were sufficient to justify his detention. (2)
The defendant must be present in court when the case Defendant comes on to be heard, that if the order is quashed, he may sent in court, enter into a recognizance to abide such order as may be on argument. subsequently made by the sessions. (3)
When orders are thus removed, the court of king's When quash bench generally decide upon what appears on the face
of the entire orthe proceedings. They will quash one therefore, 1st, If ist, For want substantially defective, as, for instance, if there be no adju- of adjudicadication that the defendant is the putative father (4), &c. 2d, If it appear that the persons making it had no juris- 2d, Jurisdicdiction, and they will collect this not merely from the They examine order itself, but from a consideration of all those orders all the orders
removed. which have been made upon the subject, and brought before them by the writ of certiorari. Thus, if two jus- Instance.
(1) Rex v. Stanley, Cald. 172. As to the form of removing orders by certiorari, see post.
(2) Rex v. Bowen, 5 Term Rep. 156. Rex v. Smith, 2 Bulst. 342.
(3) This is assigned as the reason by the Court in Rex v. Gibson, 1 Black Rep. 198. But quære, if that would have been necessary where the party had entered into a recognizance under 6 Geo. II. c.31. The necessity of his being present, is however admitted as a general rule. See Rex v. Mathews, 2 Salk. 475. Rex v. Price, 6 Term Rep. 147. where it was dispensed with. Rex v. St. Mary's, Nottingham, East, 10 Geo. II. 13 East, 57.
(4) See Rex v. Pitts, Doug. 662, and the various cases upon the form of orders thus removed, ante, 299. et seq.
tices make an order of filiation upon A. and it is quashed by the sessions upon appeal, and then, two justices make another order upon A. as the reputed father of the same child, the court will quash this last order, because they will
take notice that the former was conclusive, and discharged 3d, Where rea- the defendant. (1) 3d, Although the magistrates need not son for adju.. set forth their reasons for the adjudication, yet if they do dication insufficient. so, and they appear insufficient, the court will quash the
Where quash only part.
But where an order is defective only in one point, so that the remainder may subsist as a good order by itself,
will quash it as to the defective part, and confirm it as to the rest. Thus, where one, in other respects good, directed the defendant “ to give security to the parish to perform the order," it was confirmed as to every thing but the security, and quashed as to that. (3) So, where an order of sessions awarded costs to be paid by the defendant, to be taxed by the clerk of the peace, the court confirmed the order, except as to the costs, and quashed so much of it. (4)
Order of Filiation, &c. how far conclusive.
Order of sessions, how far conclusive.
If a person be adjudged the reputed father of an illegitimate child by the justices at sessions, it is a sentence by the authority of the law, which cannot be impeached in the spiritual court, or elsewhere; and all are concluded to say the contrary, until it is reversed. (5)
(1) Rex v. Tenant, 2 Str. 716. post, 315. (2).
(3) Per Holt C. J., Comb. 264. Rex v. Fox. 307.(1). Rex o. Mes senger, i Bott, 468.
Pl. 585. Rex v, Price, 6 Term Rep. 247. ante, 313. (3), ante, 308. (1).
(4) Rex v. Skinn, 1 Bott, 470. Pl. 487. ante, 312. (5). Rex v. Swert, 9 East, 25.
(5) Webb v. Cooke, Cro. Jac. 535. and 626. Thornton v. Pickering,