Order that child should mother and the mother may be disposed to take care of the child, but it is not probable that it will be so advantageously brought up under her care as under the care of some person whom the father approves of. It often happens that the mother insists upon the custody of the child, not so much out of regard to the child itself, as with a view to make the father pay a sum of money towards its maintenance and education. Nevertheless, the mother must have the child, unless some ground be laid by affidavit to prevent it. Let the child be delivered to the mother." (1) It is observable, likewise, that in a more ancient case, remain till the no objection was taken on this ground to an order of magistrates directing the mother to have the care of the child until seven years old, and the father to contribute it, seems good. to the maintenance for that time: but it was quashed for another defect. (2) father contri bute to support But it seems still unsettled in whose custody a child that has been affiliated is to remain after it has passed the age of nurture. In an action of debt on bond conditioned for payment of a weekly sum for maintenance of a bastard child so long as it should be chargeable, the defendant pleaded that after the child had attained the age of seven years the putative father offered thenceforth to keep and maintain the child, and requested the overseers to deliver it to him. Sir J. Mansfield C. J. concluded his judgment as (1) Ex parte Ann Knee, 1 New Rep. 138. By the law of Scotland, the mother is entitled to the care of her bastard child though past seven years of age. Short contra Donald, 3 Dict. Dec. 69. or although the father has been previously decerned by the justices of the county, in a certain yearly aliment, which aliment the mother may recover, although the father offers to take, maintain, and educate the child. Burgess v. Haliday, ib. (2) Rex v. Willey, 1 Bott, 490. Pl. 652. But the father did not claim to keep it. 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) cessitous bas tards without an order. 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 liable, or entitle them to have recourse to the security, in order to reimburse their expences. (2) And their obligation 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) Must maintain ture, But it is otherwise if the child resides there for any other Continues onpurpose; and the obligation ceases altogether when it acquires a settlement in another parish. (4) It is to be further observed, that where an obligor is arrested on the bond, he cannot be held to bail for the penalty, but for the damages actually incurred (5); yet he may pay the whole penalty to the parish (6), or (in the (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). ly while child is chargeable. Party can be held to bail in bond only for damages sus tained. But he may pay the entire penalty. Remedy under c. 12, s. 19. 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 (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 the sessions are to make a further order for the overseers 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) Order con firmed at sessions. 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 13& 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.I. c.8. which is copied from it, and it seems as if they must be construed in the same manner. For the construction of 5 Geo.I. see Stable v. Dixon, ante, 268. (1). (2) Reg. v. Chaffey, 2 Ld. Raym. 858. See also Stable v. 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. 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. SECT. XI. 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) every The words of 7 Jac. I. c. 4. are, "That lewd woman which shall have any bastard which 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, 521.(4). See also Rex v. Bowen, 5Term Rep. 156. (3) Per Lord Mansfield, Rex v. Westmeon, ut supra. |
