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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: 1st, 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 mother to put in surety to perform the order, or else personally 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)
Form of security under
(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. 542. 2 Const. 471. Pl. 615. See also the words of Lord Hardwicke C. J. Rex v. Messenger, ib. 474. Pl. 623.
54 Geo. III. c.170. s. 8.
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 so long as the child shall continue chargeable. (2)
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.
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. 510. and deemed chargeable, held sufficiently certain, for it means until she shall be so deemed by a jury.
(2) Strangeways v. Robinson, et alt. 4 Taunt. 498.
Sect. 9. Inhabitants wit
And by the same statute, s. 9. no inhabitant or person rated, 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 for indemnifying the parish must be brought in the names of the overseers for the time being, and not in the names of the original obligee. (1)
name of existing overseers.
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.
Effect of this
Note for a sum certain.
them harmless, from all costs and charges whatsoever, for or by reason of the birth, education, or maintenance of the child; and all actions, suits, charges, troubles, and demands of and concerning the same. (1) All the inhabitants of the parish are to be considered parties to this instrument, and the overseers are but trustees for them. (2)
Such a bond operates as an indemnity to the parish so long as the obligors continue solvent. The party thereby admits his obligation to provide for the child; and the only question to arise is, whether the parish is legally damnified so as to entitle its officers to put the bond in suit? (3)
But it is to operate only as an indemnity; therefore, in an action upon the bond, the obligors cannot be held to bail beyond the amount of the damage actually sustained by the parish. (4)
Also where a promissory note, in the usual form, is given to the parish officers, payable for a sum certain, unconditionally, at a given time, still they can recover no more upon it than the actual costs, charges, and expenses to which the parish has been put in respect of the child upon whose account it was given. Where an action, therefore, was brought upon such a note for the entire value, and the defendants pleaded a tender to the amount of a less sum being that to which the parish had been damnified, the defendants were held entitled to a verdict. (5) For the statute expressly requires that the security shall be taken
(1) See the form of the bond, 1 Burn's Justice, title Bastard.
(2) Per Lee C. J., Newland v. Osman, 1 Bott, 460. Pl. 574.
(3) See post, part 7.
(4) Kirk v. Strickland, Doug. 449. See post, 335. (5).
(5) Cole and others v. Gower and others, 6 East, 110. See also Wilde v. Griffin, 5 Espin. N.P. C. 141. Tomson v. Wilson, 1 Campb. 396. Stainforth v. Staggs, ibid. 398. n. Watkins v. Hewlett, 1 Brod. & Bing. 1.
in order to indemnify the parish, and has thereby excluded its being taken for any other consideration. (1) Its object was merely to indemnify the parish, and not to create a speculation of loss or profit to them upon the life or death of the child, and the parish officers should have no temptation to be careless in the execution of their trust. But it must be admitted, that they will not have the same interest to take care of the child, for whose maintenance they have received security for a sum certain, as if it were taken only for their indemnity. Upon the whole, therefore, weighing the inconveniences on either side, it is better to abide by the strict letter of the statute. (2)
And the parties receiving the money cannot discharge When obligor is bankrupt. themselves from their liability, by paying it over to their successors. (3)
For the same reason, where an indemnity-bond is given, and the obligor becomes bankrupt, the parish cannot prove the penalty under the commission, and so receive a sum certain; and the bankrupt's certificate is no bar to an action on the bond for expenses after the bankruptcy. (4)
II. Of the Recognizance under 49 Geo. III. c. 68. and its
6 Geo. II. c.31.
A recognizance is entered into either before a single ma- Recognizance gistrate or before two. The first may be taken under under 49 Geo. III. c. 68., the latter in pursuance of 18 Eliz. c. 3. The recognizance under 49 Geo. III. is substituted for that previously required by 6 Geo. II. c. 31. which is thereby taken away, and the justice or justices authorised
(1) Per Lord Ellenborough C. J., ibid.
(2) Per Lawrence J., ibid.
(3) Tomson v. Wilson, ante, 320. (5).
(4) Overseers of St. Martin v. Warren, 1 B. & A. 491.