was not incurred voluntarily, but was a necessary payment in discharge of their legal obligation to maintain it.

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?

of maintenance. 2d, That it was

not voluntary.

ment.

The defendant was apprehended under 6 Geo. 11. 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, 1 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.

Putative father has right to care of the

child, and may

take it from the parish.

If the father offers to main

The putative father has a natural right to the care and education of his child. (1) The intention of the 18 Eliz. was to provide for the bastard, and at the same time to indemnify the parish; and the law could never think of taking the care and education of children from their parents; nor could this enter the mind of a judge. (2) A putative father has a right, therefore, to take his natural child from the custody of the parish, and maintain it himself (3), and the parish cannot insist on his paying towards the maintenance while in his custody. (4)

If, therefore, the father offer to take and maintain the tain his child, child, and the parish chuse to support it, they cannot proand the parish ceed against him upon his bond, where he has given one; support it, he bat he may plead it in bar to any breach of the condition is not liable on averred subsequent to the offer. (5)

continue to

his bond.

Quære, if on his recogni

zance.

It has been said, indeed, that as to the father's taking him (the child), he ought to have done it at first; and by suffering the order to be made, it shall be deemed a refusal in law; beside, he shall not then be suffered; he may sell him or make away with him, as too often happens. (6)

(1) Per Wright J., Rex v. Cornforth, 1 Bott. 459. Pl. 573. But this seems confined, by Lord Mansfield, to cases where an order of bastardy has been made upon him; the chief justice stating, that "neither the putative father nor mother have the legal right of guardianship." Rex v. Felton and Wenman, 1 Bott, 494. Pl. 639. But quære, whether the right may not differ as between the father and a third person, and between him and the mother; and how far the child, being within or beyond the age of nurture, makes a difference in the latter case? See post.

(2) Per Lee C. J., Newland v. Osman, 1 Bott, 460. Pl. 474. (3) Ibid. and Rex v. Felton, 1 Bott, 495. Pl. 639. But see Strangeways v. Robinson, 4 Taunt. 498. where Mansfield C. J. doubts this.

(4) Per Lord Mansfield C. J., Rex v. Felton, supra, (3); and post. 331. (3).

(5) Newland v. Osman, supra, (2); and see Richards v. Hodges, 2 Saund. 85.

(6) Reg. v. Smith, Case Sett. Pl. 64. But these remarks were made

It may be necessary to determine, in some cases, whether In what cases the putative father or the mother is entitled to the custody mother enti

of their natural child. For if the father be entitled and offer to take and support it, he cannot be considered as forfeiting his bond or disobeying an order of maintenance, by a subsequent refusal to contribute to maintain it, while in the mother's custody, any more than if it remained with the parish officers. But if the mother be entitled to the care and superintendance of her infant, it seems as if he must contribute to support it so long as the law permits it to remain with her for nourishment and protection. (1)

the father or

tled to care of their natural

child.

or mother en

mate child.

On a motion for an information against the defendants, Opinion how for taking away a bastard child from its mother, and de- far the father livering it to the father, a man of fortune, Lord Mans- titled to care field said, neither the putative father, nor the mother, of an illegiti had the legal right of guardianship (2); and if the puta- Lord Manstive father, having an order of bastardy made on him field. to contribute to the maintenance of the child, has a mind to take the child and provide for it, the parish cannot insist on his paying towards the maintenance while in his custody; and that, he thought, in this case, where the justice had ordered the child to be delivered to the mother, he (the justice) had done wrong, the father being in good circumstances, and the mother poor; and that the circumstances should direct in these cases. (3)

with reference to the form of the order, and not to a proceeding upon a security given to indemnify the parish, to which it seems inapplicable. And where there is an order of maintenance directing the defendant to pay so much a-week, an order of sessions directing that the payment shall cease upon his taking his child, is bad; for the sessions have no authority to supersede the original order. Rex v. Arundell, 1 Sess. Cas. 204.

(1) See Hulland v. Malkin, 2 Wils. 126. where the court declined giving an opinion. Strangeways v. Robinson, et alt. 4 Taunt. 498. (2) See Horner v. Liddiard, Dr. Croke's Report, 24th May, 1799. (3) Rex v. Felton and Wenman, 1 Bott, 495. Pl. 639.

Willes C.J.

Doubts of
Foster J.

Delivery to the

mother where

In another case, Chief-justice Willes said he would give no opinion whether the father had any power over a child who is nullius filius. Grotius says truly, that the mother is the only certain parent; and an order of justices to remove the mother always removes the child. (1)

Mr. J. Foster also seemed to think, that the care of educating bastard children is not to be considered as a burthen to the parish, but as a trust; and that it should not be so easy for the father to take them out of their care and custody. The statute is express, that the justices shall order the father to contribute to the parish for the maintenance of the child. (2)

But a child of three years of age being brought up (at father obtains the instance of her mother, on an habeas corpus,) by the possession by father, on whom an order of filiation had been made, fraud;

or by force.

the father has

and who had obtained possession of it by fraud, it was objected to the child's being restored to the mother, that having been adjudged the child of S. he had a right to the custody of her. But Lord Kenyon C. J. said, "that the putative father had no right to the custody of the child ;" and she was accordingly restored to the mother. (3)

Subsequent to this case, upon a motion for a writ of But quære, if habeas corpus to the defendant, to bring up the body of a the custody bastard-child five years old, which a young woman had fairly. had by the defendant, Lord Kenyon C. J.-" Take a rule. Where the father has the custody of the child fairly, I do not know that this court would take it away from him; though I do not mean to impeach the propriety of the case cited. (4) But, where he has got pos

(1) Hulland v. Malkin, 2 Wils. 126. ante, 331.(1). But this last observation also applied to the case of legitimate children within the age of nurture.

(2) Newland v. Osman, 1 Bott, 460. Pl. 574.

(3) Rex v. Moses Soper, 5 Term Rep. 278.
(4) Rex v. Soper, supra, (5).

session of the child by force or fraud, as is here suggested, it will interfere to put matters in the same situation as before." (1)

And it seems settled by the following case, that the mother is entitled to the custody of her infant illegitimate child, at least within the age of nurture, and where no order of filiation has been made upon the father.

On application for an habeas corpus in the court of Common Pleas, to bring up the body of an infant illegitimate child, to restore it to the mother, it appeared by the affidavits, that the child had been placed, by consent of the father and mother, under the care of a nurse; that it was afterwards removed by the father to another woman; that the father then went abroad, having entrusted Mr. B. a friend, with the superintendance of the child; that Mr. B. (to whom the writ was prayed to be directed) wished to have the child placed with some person where the mother could have access to the child, and, under these circumstances, was willing to pay for its maintenance, but the mother insisted upon having it delivered up to her. On the child being brought up under the writ, Mansfield C. J.-" There is no affidavit before the court to show any ground of apprehension that the child would incur any danger from being left with the mother. It is not unlikely, indeed, that by granting this application we may do a great prejudice to the child, but still the mother is entitled to the child, if she insists upon it. The application in this case may here arise from pure affection, and

(1) Rex v. Mosely, 5 East, 224. n. a. This doctrine was confirmed by the Court in Rex v. Hopkins, in which case the bastard within the age of nurture, being taken first by stratagem, and again by force from the mother, was, on the authority of the foregoing case, restored to her quiet custody. The Court declaring, that they left to the proper forum the decision of any question touching the right of custody and guardianship of the child, with which they did not meddle. Rex v. Hopkins, 7 East, 579.