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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)
Effect of this bond.
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)
Note for a sum certain.
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 de fendants 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.
(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. I.
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
A recognizance is entered into either before a single ma- Recognizance gistrate or before two. The first may be taken under un
6 Geo. II. c.31. der 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.
(4) Overseers of St. Martin v.Warren, 1 B. & A. 491. VOL. II.
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.
By 18 Eliz. e.3. Where the first proceeding is under this statute, no seno security till curity can be required of the defendant until he disobeys obeyed. an order of filiation made
There was no power 6 Geo. II. c.31. to require it in that case under
666 Geo. II. c. 31. which does not extend to it. 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 4-9 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.
Party may en
Where the party does not perform the order of filiation ter into recog- after notice, or give sufficient surety to indemnify the panizance.
(1) Rex v. Smith, 2 Bulst. 343, Rex v. Fox, i Bott, 472. Pl. 590. 6 Term Rep. 150., and the cases there cited, Rex v. Price, ib. 147. Also post, 326.
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
he is to be pa
committed. 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 101., 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. o.West, 2 Ld. Raym. 1157.
(5) Smith's case, 2 Bulst. 342. 1 Bott, 465. Pl. 577. and see Rex o.
reasonable or sufficient cause for not doing so, they are to be committed to the house of correction or common gaol of the county, and kept to hard labour for three months, unless they shall pay the same before the time expires. (1)
The act seems, with reason, to have exempted the father or mother from payment of any sum becoming due during the period of their imprisonment, as it only provides for their subsequent commitment from time to time, when they neglect to pay sums becoming due under the order, after the expiration or discharge from their former imprisonment. (2)
IV. Of the Defendant's Appearance at Sessions. Of appearance If the putative father enter into a recognizance under in pursuance of recogni
the statute of Eliz. he must appear at the next general quarter sessions, or general sessions of the peace; and where the sessions are continued by adjournment, he has, at least according to the practice of some sessions, until
the last day to make his appearance. Cause of com- When the party is committed to actual custody for dismitment of a criminal
obedience of an order under 18 Eliz. c. 3. the cause of comnature, mitment is of a criminal nature; for not only getting or
(1) The commitment must pursue the words of the statute, which give the party an option to pay the money, or stay in prison three months; a commitment until he should pay, &c., or until discharged by law, is bad. Robson v. Spearman, et alt. 3 B. & A. 493.
(2) See the section more particularly recited, ante, 282., and at large in Vol. III. The order is to be made upon application of one of the overseers of the parish, township, or place, liable to maintain the child, or where such child shall then be, and the magistrate must have proof to enable him to issue his warrant. 1. Of the order for payment. 2. Of its being unpaid. 5. Of a demand or refusal to pay. Or, 4. That the party has left their usual place of abode, and avoided a demand being made by such overseer. One question which may arise upon this act is, how far this remedy is to be considered as cumulative against the parents, and whether the proceedings under the recognizance taken, either under 18 Eliz. c.3. or 49 Geo.III. c.68., either against the principal or surety are at all affected by this clause, and if they are, to what parties, and to what extent.