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follows:-" I say nothing upon the grand point, whether after the child is out of the age
of nurture any
father whatsoever, be he who he may, can go to the mother and claim the custody of the child; upon that point the Court gives no opinion.” (1)
Wherever the child stands in need of support, the Parish must parish officers are under a legal obligation to provide for provide for neit; and a justice's order is neither necessary to make them tards without liable, or entitle them to have recourse to the security,
an order. in order to reimburse their expences. (2) And their obli- Must maintain gation extends to maintaining the child in another parish, one while resiwhere it remains with the mother, being her place of set- parish for nurtlement for the purpose of nurture. (3)
But it is otherwise if the child resides there for any other Continues onpurpose; and the obligation ceases altogether when it ac- !y while child
is chargeable. quires a settlement in another parish. (4)
It is to be further observed, that where an obligor is Party can be arrested on the bond, he cannot be held to bail for the bond only for penalty, but for the damages actually incurred (5); yet he damages susmay pay the whole penalty to the parish (6), or (in the
he may pay the entire penalty.
(1) Strangeways v. Robinson & al', 4 Taunt. 498. The plaintiff had judgment; the pleas not having stated that the child was in their custody or power, and as being bad in other respects. See also Richards Hodges, 2 Saund. 82.
(2) Hays v. Bryant, 1 H. Black. Rep. 253. And see Simpson v. Johnson, Doug. 7. ante, 329. (2).
(3) Rex v. Hemlington, Cald. 6. and the cases there cited, and see Shermanbury v. Bolney, Carth. 279. That the place of settlement must maintain legitimate children, dwelling with their mother in another parish for the purpose of being nurtured.
(4) Quære, whether the bond or recognizance are not put an end to by the child's having gained a settlement in the native parish, by reason of some subsequent right, as by service, or apprenticeship, or if a female marries a man settled there, &c.
(5) Kirk v. Strickland, Doug. 449. ante, 320.(4), &c.
(6) But see Cole v. Gower, 6 Term Rep. 110. and the other cases cited ante, 320, (5),
case of an action) into court, and thus get rid of his obligation altogether; for the penalty is in the nature of stated damages, ascertained by consent of the parties, payment of more than which cannot be required. (1)
A rule was obtained calling on the plaintiff to show cause why the proceedings in an action on a bastardy bond should not be stayed, and the bond delivered up to be cancelled, on payment of the penalty of the bond with costs. Gibbs C.J.-"I take the law to be clearly settled that it is unlawful to give or undertake to give a sum out and out, in order to indemnify a parish for the burthen which may accrue from the birth of an illegitimate child, because it would excite an interest in the death of the child. This, however, is not a contract to pay a gross sum at all events, but to pay a penalty if the parish be not indemnified. The object of the contract is to indemnify the parish, and that object is secured by the penalty. The party who enters into it is interested not to pay the entire penalty, if the damages do not amount to it; but if he be conscious that they do, it then becomes his interest to pay the penalty, because otherwise he would only be incurring further costs. If he thinks he cannot resist the payment of the full penalty, it is impossible to say that on payment of the whole demand which the parish has upon him, he is not entitled to be relieved from all further proceedings.” (2)
VII. Of the Remedy by Sale of Part of the Father or
If the putative father and the mother are persons of sufficient substance, the churchwardens and overseers of the parish may apply to two justices of the peace, to en
c. 12, s. 19.
(1) Brangwin v. Perrot, 2 Black. Rep. 1190. Wilde v. Clarkson, 6 Term Rep. 303.
(3) Shutt v. Proctor, 2 Marsh, 224.
able them to seize so much of their goods and chattels, and receive so much of the annual rents and profits of their lands, as shall be ordered by the said justices, for or towards the discharge of the parish, and the bringing up and providing for the child.
This order must be confirmed at sessions, and thereupon Order conthe sessions are to make a further order for the overseers
sessions. to dispose of the goods by sale or otherwise, or so much of them, for the purposes aforesaid, as the court shall think fit; and to receive the rents and profits, or so much of them, as shall be ordered by the sessions. (1)
An order, by which the churchwardens and overseers Order bad. were directed to seize what they themselves should think proper of the defendant's goods, to secure the parish from the maintenance of the child, was quashed as bad; because by 138 14 Car. II. c. 12., the justices have only authority to make an order enabling the churchwardens to seize what the justices should think proper. (2)
VIII. Of Indictment.
If an order has been made, and the party disobeys, he is liable to be indicted in the same manner as for disobedience of any other order, made either in or out of sessions by magistrates possessed of competent authority. (3) And the parish are not prevented from proceeding to enforce an order by these means, although a recognizance which
(1) 13 & 14 Car.II. c.2. s.19. The provisions of this statute correspond with those of 5 Geo.l. c.8. which is copied from it, and it seems as if they must be construed in the same manner. For the construction of 5Geo.I. see Stable v. Dixon, ante, 268.(1).
(2) Reg. v. Chaffey, 2 Ld. Raym. 858. See also Stable o. Dixon, ante, 268. (1),
(3) Ante, 265. and, query, whether this remedy is altered to any, and what extent by 49 Geo.III, c.68, s.3. VOL. II.
has been taken is forfeited, and the penalty recovered in the exchequer; for the disobedience is a crime, and as such, becomes the subject of specific punishment The recognizance is taken as a pecuniary caution from the party to ensure his obedience; but its being forfeited by an act of disobedience does not get rid of the crime. It is like the case of security taken to prevent a breach of the peace. If the party break the peace afterwards, his recognizance is forfeited, but that does not prevent his being indicted for an assault.
Of the Punishment of the Mother and reputed Father.
GETting an illegitimate child was not punishable as a crime at common law. (1) But the 18th of Elizabeth expressly considers the producing bastards as an offence; not only the getting or bearing the child, but the leaving it to be a burthen on the parish, and defrauding the relief of the true poor of it. Therefore, the justices may order a proper punishment of the parents, and also take order for maintaining the child in relief of the parish. They may do either or both (2), but “ the statute seems only to go to the punishment of the parents, for the purpose of securing an indemnity to the parish.” (3)
The words of 7 Jac. I. c. 4. are, “ That every lewd woman which shall have any bastard rwhich may be chargeable to the parish, the justices of the peace may commit,” &c. from which words Lord Coke infers, that “if she will dis
(1) Per Lord Mansfield, Rex v. Westmeon, Cald. 129.
(2) Per Wilmot J., Rex v. Ellen Taylor, 5 Burr, 1679. ante, 321.(4). See also Rex v. Bowen, 5 Term Rep. 156. (3) Per Lord Mansfield, Rex v. Westmeon, ut supra.
charge the parish of the keeping of the bastard, she cannot be punished by this statute, but by that of 18 Eliz. c. 3.” (1)
It was also held upon 7 Jac. I c. .4. that the mother of a Under 7 Jac.1. bastard child should not be punished upon that statute, as for 6.4. first of.. her second offence, unless she has been before questioned of which she and punished for her first offence. She might have been is first con
victed. punished for her first offence, either by the statute 18 Eliz. c. 3., or 7 Jac. I. c. 4.; but is not to be punished by the 7Jac. I. c.4. s. 7. as for her second offence, unless she has been before punished for her first; but this second offence shall be now taken and deemed as her first offence, and so is to be punished for the same, according to law. (2)
It had likewise been resolved by the whole court, that in cases of bastardy “ the justices have not authority to commit the woman to prison for life, for the first offence."(3)
But 50 Geo. 3. c.51. sect. 1. repeals so much of 7 Jac. 1. 50Geo.III. as relates to the commitment of women to the house of correction, there to be punished and set on work for having bastards who may be chargeable to the parish.
Sect. 2. empowers any two justices before whom the woman be brought to commit her to the house of correction for the district or place (4), there to be set at work for any time not exceeding twelve calendar months, nor less than six weeks.
Sect. 3. enables any two justices, at any petty session for the division in which the parish to which the bastard may
(1) 2 Inst. 753. and that the parents are not punishable under 18 Eliz. unless the child be chargeable to the parish. Lightfoot v. Pigot, i Roll Abr. 37. Pl. 12. Winter v. Barnard, ibid. Macksey v. Mazey, Comb. 434. Per Lord Mansfield, Rex. v.Westmeon, ante, 336. (1), and see Crompt, 196. s.8. Dalt. c.11.
(2) 1 Bulst. 348.