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An order of sessions made upon appeal, is not only final Upon appeal,
the order of where it affirms the original order (1), but also where it sessions quashreverses it.
ing or affirming an original is
final. An order of filiation was made by two justices, and afterwards discharged by the sessions upon appeal, after the merits were fully heard ; neither two justices (2), nor a subsequent sessions, can make a new order for this matter against the same person. (3) For being legally acquitted, he cannot be drawn in question again for the same fault. And it would be absurd, that when two justices have power by law to make original orders, and when the sessions have power upon appeal from those orders, as well as by original application, that two justices should have a power to alter their orders, when those very orders of alteration might be reversed by the sessions. (4)
But it must be made upon hearing the merits. If they To be final, discharge an order for form, a new one may be made. (5) must be made
on the merits. And where an order of sessions quashing one made by two justices, recited, that it " was made on full hearing ; the court of king's bench held, that the merits must bave come before the sessions, and that the discharge was conclusive. (6)
An order of filiation made by justices out of sessions, Order of two is conclusive when unappealed from; but they have no justices, how
far conclusive. power to make one to discharge the person charged as the
i Freem. 283. 3 Keb. 200. cited i Ld. Raym. 394. Yet see a dictum of Holt C. J., that if a person be committed as the father of a bastard child, and the child is no bastard, an action will lie. Dr. Greenvells case, Comb. 482. Neither can it conclude the infant.
(1) Rex v. Arundell, 1 Sett. Cas. 234.
(2) Rex v. Tenant, 2 Ld. Raym. 1423. Slater's case, Cro. Car. 471. ante, 307.(5). Anon. 1 Vent. 59.
(3) Pridgeon's case, 1 Bulst. 252.
Cannot make reputed father, and to adjudge him not to be so; for they an order to ad judge the de- have no jurisdiction to acquit or convict the parties, but fendant not to take order for the relief of the parish, or punishment of to be the father. the party, these being the only two sorts of orders which
the statute empowers them to make. It would be incon
venient, also, to hold, that two justices may make a final Parish has no order; for the statute 18 Eliz. c. 3. gives the parish no apright to appeal.
peal; and the appeal for the party accused arises only from his being bound over to the sessions; but if the two justices might make a final order of discharge, there is no method for the parish to appeal, but they would be concluded for ever without relief. (1)
But the adjudication by the sessions on appeal is final only as it respects the party who was adjudged the putative father by the original order; for if that order be repealed, the matter is as res integra so far as it respects all other persons. (2)
Of the Remedies to indemnify the Parish.
Methods of in
The chief object of all the statutes passed on the subject demnifying the of bastardy, from 18 Eliz. c. 3. down to 49 Geo. III. c.68.
is to secure an indemnity to the parish, in which the child
(1) See Rex v. Jenkin, Cases Temp. Hardw.301. 2 Str. 1050. S. C. But it has been shown that a general sessions does possess
of discharging the party upon application to them for an original order. See Rex v. Jenkin, supra, and the cases cited ib. by Lord Hardwicke. In Slater's case, there was an original order of sessions discharging the person who was charged to be the putative father. Two justices afterwards made an order affiliating the child upon him. This order was resolved to be void, and that originally made at sessions to be final. Cro. Car. 374. See ante, 315. (2), (3).
(2) See Rex v. Smith, 2 Bulst. 343.
is born, against immediate charges, and future expence, until it becomes settled in some other place. (1)
The remedies by which the child's maintenance may be forced from its parents, in consequence of an order of filiation, are: Ist, Security to indemnify the place to which the child is likely to become chargeable. 2nd, A recognizance. 3d, Commitment. 4th, Proceedings in the court of quarter sessions. 5th, In the court of king's bench, when the order is removed thither by certiorari. 6th, By sale of part of the father or mother's property for the child's support. 7th, By indictment.
I. Of Security to the Place to which the Child is chargeable.
The 18 Eliz. c. 3. enables the putative father and the form of secumother to put in surety to perform the order, or else per- 18 Eliz. sonally to appear at the sessions, &c. The act appears to refer only to one mode of putting in surety; and as that must be taken before a magistrate, in his judicial capacity, where the party binds himself to appear at the sessions, it seems probable that the only security intended by this statute was a recognizance, that is, a record whereby the recognisor acknowledges a debt to the crown, and which should be returned to the sessions by the justice who takes it. The constant practice, however, is for the parish to take a bond of indemnity, where an order is made under 18 Eliz. and the father is willing to give one. (2)
(1) Rex v. St. Mary's Nottingham, 13 East, 57. Rex v. Greaves, Nels. Bast.
(2) It is laid down by Jones J. that the justices may either take a bond or recognizance, Smith's case, 2 Bulst. 342. 2 Const. 471. Pl.615. See also the words of Lord Hardwicke C. J. Rex v. Messenger, ib. 474. Pl. 623.
A voluntary bond to the parish officer conditioned to pay a certain sum quarterly, so long as and until the bastard should be deemed capable of providing for itself, has recently been held good. (1) So likewise to pay a weekly sum long as the child shall continue chargeable. (2)
Under 6 Geo. II.
The 6 Geo. II. c.31. and 49 Geo. III. c. 68. expressly allow the putative father either to give security to indemnify the parish, or else to enter into a recognizance; which, according to the last act, is to appear at the ensuing sessions, to abide and perform such order as shall be then made in pursuance of 18 Eliz. c. 3.
54 Geo.IlI. c.170. s.3. Action by overseers on bastardy securities.
By stat. 54 Geo. III. c. 170. s. 8. it is enacted, that all securities given or received, or hereafter to be given, for indemnifying any district, parish, township, or hamlet, for the maintenance of any bastard child or children, respectively; or any expenses in any way occasioned to such district, parish, township, or hamlet, by reason of the birth or support of any bastard child or children born within such district, parish, township, or hamlet, or chargeable thereto, shall be, and the same are hereby declared to be vested in the overseers of the poor of such district, parish, township, or hamlet, for the time being: and that it shall and may
be lawful for the overseers of the poor of such district, parish, township, or hamlet, to sue for the same as and by their description of overseers of such district, parish, township, or hamlet; and such action, so commenced by such overseers, shall in no ways abate by reason of any change of overseers of such district, parish, township, or hamlet, pending the same, but shall be proceeded in by such overseers for the time being as if no such change had taken place, any law, usage, statute, or custom, to the contrary in any wise notwithstanding."
(1) Middleham v. Nellerby, 1 M. & S. 310. and deemed chargeable, held sufficiently certain, for it means until she shall be so deemed by jury.
(2) Strangeways v. Robinson, et alt. 4 Taunt. 498.
And by the same statute, s. 9.
no inhabitant or person
Sect. 9. Inha
bitants witrated, or liable to be rated, to any rates or cesses on any nesses. district, parish, township, or hamlet, or wholly or in part maintained or supported thereby, or executing or holding any office thereof or therein, shall, before any court, or person or persons whatsoever, be deemed and taken to be, by reason thereof, an incompetent witness for or against such district, parish, township, or hamlet, in any matter relating to such rates, &c.” or touching any bastards chargeable, or likely to become chargeable, to such district, parish, township, or hamlet, or the recovery of any sum or sums for the charges or maintenance of such bastards.”
It is decided upon this statute, that actions on securities Action in
name of existfor indemnifying the parish must be brought in the names
ing overseers. of the overseers for the time being, and not in the names of the original obligee. (1)
As it is in the reputed father's option either to give the amount in ofsecurity, or enter into a recognizance such as is prescribed ficer's discreby the act, the parish officers have a right to fix the amount of the security to be given at any sum they may think proper. (2)
This security is usually given by bond; but a promis. Bond or note. sory note to the parish officers is equally legal (3), or a sum of money may be deposited with the overseer by way of composition with the parish. (4) When a bond is given, it is generally entered into by the reputed father and one surety, with the existing churchwardens and overseers in trust for the parish, conditioned to indemnify, and save
(1) Addey v. Woolley, 3 B. Moore, 21.
(2) Per Lord Kenyon C. J., Dickenson v. Brown, Peake's Ni. Pri. Ca. 234.
(3) Per Grose J., Cole v. Gower, 6 East, 110. See Strangeways v. Robinson and another, 4 Taunt. 498.
(4) And the overseer is liable to an indictment if he fraudulently omit to give credit to the parish in his accounts for the money so received. Rex v. Martin, 2 Campb. 268.