Of appearance in pursuance of recogni zance. Cause of commitment of a criminal nature. 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. Ir the putative father enter into a recognizance under 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. When the party is committed to actual custody for disobedience of an order under 18 Eliz. c. 3. the cause of commitment 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. bearing the child, but leaving it to be a burthen on the parish, Of married is an offence (1). A woman, therefore, who is unmarried at women, good. the time her bastard is born, may have an order of filiation and maintenance made upon her, notwithstanding a subsequent marriage, and her husband need not be summoned to show cause against the order; but if she disobey it, she may be sent either to the common gaol, under 18 Eliz. c.3., or to the house of correction, under 6 Geo. I. c. 19. s. 2., for she is committed for an offence, and for want of sureties. (2) So, likewise, upon the same principle, it has been held, So of a soldier. that a soldier in actual pay may be committed for disobeying an order of bastardy, for he is not protected by the clause in the mutiny act exempting him from arrest, where his original debt is under 20l., inasmuch as it excepts criminal matters. (3) c. 68. The recognizance taken under 49 Geo. III. c. 68. s. 2. is 49 Geo. III. for the parties' appearance at the next quarter sessions, "to abide and perform such order or orders as shall then be made, in pursuance of the act of the 18 Eliz." It seems, therefore, that if an order of filiation is made out of sessions, the terms of the recognizance do not extend to it. (4) This act enables the sessions to respite or discharge the Recognizances when respited, recognizance in certain events, without requiring the per- &c. (1) Per Wilmot J. Rex v. Ellen Taylor, ante, 323. (4) But that this may depend upon the child being chargeable. See post. (2) Rex v. Ellen Taylor, supra, (1). (3) Rex v Archer, 2 Term Rep. 270 See Rex v. Bowen, 5 Term Rep. 156., ante, 315. (2). (4) The words in 6 Geo. II. c.31. s. 1. state the condition of the recognizance" to appear at the next general quarter sessions, &c. and to abide and perform such order or orders as shall be made in pursuance of an act passed in 18 Eliz." The condition under this act, therefore, seemed to extend the security to the performance of an order made by two justices out of sessions, as well as to one made there; but the use of the word "then," in 49 Geo.III., seems to confine the security to the performance of the order made there. Sessions cannot commit for disobedi ence of their order on appeal from one justice, under 18 Eliz. c.3. Remedy on recognizance. May commit when order under 3 C. 1. C. 4. sonal attendance of the father or his sureties, upon the production of a certificate in writing of one magistrate, in some cases, and of two in others. (1) But lest the party should appear in person at that sessions, in pursuance of his recognizance, it seems expedient for the parish officers to attend and apply for an order, or else to move to have the recognizance respited, upon proof of sufficient grounds for doing so, as was the practice before the statute passed. At least this seems the safest course to adopt, for if the words of the act are to be literally construed, the recognizance is satisfied by the putative father's appearance to abide and perform the order to be then made; and, therefore, it may be discharged, unless such an order is made, or it is respited on the application of the parish on whose behalf it was originally taken. Where there is an appeal against the justice's order, the sessions have no power under 18 Eliz. c. 3. to commit for disobedience to their order made upon that appeal. (2) The remedy is upon the recognizance which the statute directs to be taken by the two justices who make the order, which, if the party will not enter into, the justices may commit him. (3) If the justices neglect to take a recognizance, that does not give the sessions a power to commit, which the statute does not give them. (4) But 49 Geo. III. takes away the right of appeal, unless security is given to try it, and pay such costs as shall be awarded by the sessions. And where the sessions proceed under 3 Car. I. c. 4. to make an original order, they may commit for the nonperformance. (5) (1) See ante, 289. (2) Per Holt C. J., Reg. v. West, ante, 323. (5). (3) Ib. and Reg. v. Weston, Salk. 122. (4) Eod. Jud., ibid. (5) Reg. v. West, and see Reg. v. Weston, supra, (3). V. Of enforcing Obedience by the Court of King's Bench. order con If an order is removed into the King's Bench, and con- K. B. takes no firmed there, an attachment lies for non-performance, and, therefore, that court will not take security of the party for the performance. But if the original order had been at the sessions, not removed into the King's Bench, the court would take security of the party to appear there. (1) The court will, when it quashes such orders as bad, bind the defendant to appear at the next sessions and abide their order. (2) But where the court thinks such an order good in substance, although partially defective, and void pro tanto, they will not quash it in toto, for the purpose of enabling the parish to take another security from the defendant to abide a better order. (3) Although the court of King's Bench does not take security for the performance of an order confirmed there, yet, if a recognizance has been taken in the court below, it seems to continue in force, so as to entitle the parish to their remedy thereupon for any subsequent disobedience of the order. security where firmed, but attaches for disobedience; otherwise, if original order unremoved. Will not quash where partially bad. Quære, whether the recognizance does not continue in force. VI. Of proceeding upon the Security given the Parish, or the If the order of filiation and maintenance is valid, either through the party's acquiescence or the court's judgment, the parish, if they have obtained a bond or recognizance, (1) Reg. v. Chaffey, 2 Ld. Raym. 858. 3 Salk. 66. (2) Rex v. Gibson, Black. Rep. 198. See Rex v. Albertson, 2 Salk. 483. 1 Ld. Raym. 395. Rex v. St. Mary's Nottingham, 13 East, 57. ante, 312. (1). (3) Rex v. Fox, as reported by Lord Kenyon C. J., 6 Term Rep. 148. Obligation of the parish. Continues notwithstanding an order on the parents. Proceeding upon bond. Upon note. Upon recognizance. Neglect to maintain is a breach of a bond and recognizance. To proceed on either, it must be proved, 1st, That parish put to expense may proceed upon it, so soon as they sustain any loss or damage by maintaining the child (1); for the remedy against the parents is only in aid of the parish, and does not supersede its obligation to maintain the infant as one of the settled poor, so long as it is incapable of providing for itself. The proceeding upon a bond of indemnity is by action of debt, brought against the putative father or his surety, or both, according to the form of the obligation and the plaintiff's discretion. When the parish officers have taken a promissory note, it is by action of assumpsit. The proceeding upon a recognizance is by moving the court of quarter sessions, where it is filed of record, to estreat it into the court of exchequer. If the motion be granted, the recognizance is returned of course, by the clerk of the peace, into that court, to be recovered there for the crown's benefit. Whatever amounts to a breach of the condition of the bond, is likewise a disobedience of an order made under 18 Eliz. for the child's maintenance, so that the same facts which give the parish a remedy upon a bond, entitle it to proceed for a forfeiture of the recognizance where the default arises from a neglect to provide for the child. (2) It appears from what has been said, that two circumstances must concur to entitle the parish to proceed in either case: 1st, That the parish has been put to costs and charges for the child's support. 2d, That the expense (1) See ante, 323. Strangeways v. Robinson and another, 4 Taunt. 498. (2) There is another ground for proceeding upon a recognizance, viz. if the defendant does not appear at the sessions, conformable to the condition, whereby it becomes also forfeited, and is estreated as a matter of course without motion of counsel. |
