66 And by the same statute, s.9. no inhabitant or person rated, or liable to be rated, to any rates or cesses on any 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) Sect. 9. Inha bitants wit nesses. Action in name of exist ing 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) tion. 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 bond. 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 themselves from their liability, by paying it over to their is bankrupt. 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 Extent. under 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. VOL. II. Y By 18 Eliz. c.3. no security till order disobeyed. 6 Geo. II. c. 31. does not extend to it. Nor Party may en and required, where the mother has not been delivered, to commit the person charged with being the father, unless he shall give security to indemnify the parish or place, or shall enter into a recognizance upon condition to appear at the next quarter sessions, to abide and perform such order or orders as shall then be made in pursuance of the 18 Eliz., unless certain matters set forth in the act are certified to the sessions, when in some cases they are empowered to respite, and in others to discharge the recognizance, without requiring the personal attendance of the putative father or his sureties. III. Of the Recognizance under 18 Eliz. c. 3. and its Extent. Where the first proceeding is under this statute, no security can be required of the defendant until he disobeys an order of filiation made upon him. There was no power to require it in that case under "6 Geo. II. c. 31. which was passed quite for another purpose; and the court were of opinion, that though the law seemed defective in that point, and it had been as well if the 6 Geo. II. c. 31. had extended to it, yet they must determine, as the law stood, on 18 Eliz. c. 31." which did not enable the justices to require, by their order, security from the putative father for performing it. (1) The 49 Geo. III. appears to have made no alteration of the law in this particular, but is confined to the appropriation of a different punishment, in the event of neglect or refusal to perform that part of the order which provides for the child's maintenance. Where the party does not perform the order of filiation ter into recog- after notice, or give sufficient surety to indemnify the pa nizance. (1) Rex v. Smith, 2 Bulst. 345. Rex v. Fox, 1 Bott, 472. Pl. 590. 6 Term Rep. 150., and the cases there cited, Rex v. Price, ib. 147. Also post, 326. committed. rish by bond, in the manner already mentioned (1), he may enter into a recognizance before two justices, to appear personally at sessions, and also to abide such order as shall be made there, or else to perform the original order, if the sessions make none. (2) Previous to 49 Geo.III. c. 68. if If he does not the defendant could neither give security to satisfy the pa- he is to be rish, nor enter into this recognizance, he must be committed to the common gaol under 18 Eliz. c. 3. (3), or to the house of correction under 6 Geo.I. c.19. s.2. (4); and the commitment must run in the disjunctive, that is, except he shall put in sufficient surety to perform the said order, or to appear, &c. (5) 49 Geo. III. sect. 4. provides that the charges and ex- Costs and expenses incident to the birth of the child, together with the penses. costs of apprehending and securing the father, and those of the order of filiation, which last two are not to exceed 10., are to be in the discretion of the justices, or sessions making the order of filiation, who are authorised, if they shall see fit, to allow and order payment of the whole or any part thereof; and for securing the payment after such allowance and order, the powers and provisions of the 18th Eliz. may be observed and practised. But payment of the sums directed to be paid for the child's maintenance, if the order was made at sessions, or confirmed there, or if no appeal has been made against it, is to be enforced by apprehending the parties (6) under the warrant of a justice; and if they do not pay such sum as shall appear to them to be due and unpaid, or show some (1) Ante, 318. (2) This recognizance does not seem altered or affected by the provisions of 49 Geo. III. (3) Reg. v. West, 2 Ld. Raym. 1157. (4) Rex v. Ellen Taylor, 3 Burr. 1679. 1 Bott, 475. Pl. 591. (5) Smith's case, 2 Bulst. 342. Messenger, 1 Bott, 468. Pl. 585. 1 Bott, 465. Pl. 577. and see Rex v. The form of the commitment was so in Rex v. Ellen Taylor, 3 Burr. 1679. 1 Bott, 473. Pl. 591. (6) Father or mother. |
