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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 201., inasmuch as it excepts criminal matters. (3)
The recognizance taken under 49 Geo. III. c. 68. s. 2. is 49 Geo. III.
C. 68. 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
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.
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.
Sessions can- Where there is an appeal against the justice's order, the not commit for disobedi
sessions have no power under 18 Eliz. c. 3. to commit for ence of their disobedience to their order made upon that appeal. (2) order on ap- The remedy is upon the recognizance which the statute justice, under directs to be taken by the two justices who make the order, 18 Eliz, c.3.
which, if the party will not enter into, the justices may Remedy on commit him. (3) If the justices neglect to take a recogrecognizance.
nizance, 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.
May commit when order under 3 C.1. c. 4.
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.
V. Of enforcing Obedience by the Court of King's Bench.
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, security where therefore, that court will not take security of the party for firmed, but the performance. But if the original order had been at attaches for
disobedience; the sessions, not removed into the King's Bench, the court otherwise, if would take security of the party to appear there. (1)
unremoved. The court will, when it quashes such orders as bad, Will not bind the defendant to appear at the next sessions and abide quash where their order. (2) But where the court thinks such an order
partially bad. 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 secu- Quære, rity for the performance of an order confirmed there, yet,
recognizance if a recognizance has been taken in the court below, it does not conseems to continue in force, so as to entitle the parish to tinue in force. their remedy thereupon for any subsequent disobedience of the order.
VI. Of proceeding upon the Security given the Parish, or the
If the order of filiation and maintenance is valid, either Obligation of through the party's acquiescence or the court's judgment, the parish. 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. iLd. 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.
Continues may proceed upon it, so soon as they sustain any loss or notwithstanding an order
damage by maintaining the child (1); for the remedy on the parents. 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.
Neglect to maintain is a breach of a bond and recognizance.
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 circumon either, it stances must concur to entitle the parish to proceed in must be proved, ist,
either case: 1st, That the parish has been put to costs and That parish
charges for the child's support. 2d, That the expense put to 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 coiuse without motion of counsel.
was not incurred voluntarily, but was a necessary payment of mainte
nance. 2d, in discharge of their legal obligation to maintain it.
That it was
not voluntary. The first point is a mere question of fact, which admits of easy proof. The chief question, therefore, is, what amounts to such a voluntary payment as exonerates the father and his surety from their obligation to reimburse the parish ?
The defendant was apprehended under 6 Geo. II. and Instance of gave a bond to indemnify the parish of W. against the voluntary payexpences of a child likely to be born a bastard. The mother removed voluntarily to the parish of G. and was delivered there, but returned to W. the place of her settlement, carrying her child with her, where she received 1s. 6d. weekly from the overseers of W. for the maintenance of herself and child. An action being brought by the overseers of W. against the father's surety, to recover this money, the court gave judgment for the defendant. Per Lord Mansfield C. J. — The payment by the parish officers of W. was doubly voluntary; first, because there had been no order upon them to pay (1); and, secondly, because they were not liable to maintain the child, but the parish where it was born, and they should have applied to the officers of that parish. (2) But where justices make an order requiring the parish in which the child is born, to support it in some other place, and the parish does so, the obligors are bound to reimburse the sums which have been expended in pursuance of the order. “ For if a justice makes an irregular order, and instead of removing the pauper, directs the parish to pay a weekly sum, the parish is not bound to contest it.” (3)
(1) Quære of this, see Hays v. Bryant, i H. Black. 253. post. 335.(2). (2) Simson v. Johnson, Doug. 7.
(3) See Allen v. Sir John Peshall, 2 Black. Rep. 1177. where a bond was given, for the maintenance of certain paupers, but not under the statutes which relate to bastardy.