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35 & 36 Vict. and of the funeral expenses of the child, provided it has died before
the making of such order. The defendant's appearance and not objecting to the jurisdiction cures any defect in the summons (cases of Reg. V. James Berry, Reg. v. Simmons, Reg. v. Fletcher, in Note 19, infra). The hearing may be adjourned, but no order can be made unless applied for within forty days after service of the summons, where application made after birth (7 & 8 Vict. c. 101, s. 4).
With regard to the right of the complainant to reply, it appears to us that she has not that right, as the 11 & 12 Vict. c. 43, s. 14, Vol. I. p. 178, prohibiting a reply, is applicable to proceedings in bastardy, except in the particulars pointed out in sect. 35, which declares that the statute shall not be applicable" to any complaints, warrants or orders in bastardy, except as relates to the backing of warrants for compelling the appearance of the putative father, or warrants of distress, or the levying of sums ordered to be paid or to the imprisonment of the defendant for non-payment of the same." It will be observed that this section does not apply to proceedings generally in affiliation applications as it subsequently does with reference to proceedings under the acts relating to the labour of children and young persons in mills and factories, but merely to the formal complaints, warrants, or orders in bastardy, these instruments being fully provided for by the then existing statute of the 8 Vict. c. 10, and since by the forms issued by the Local Government Board under the authority of sect. 6 of the 36 Vict. c. 9. As, therefore, it is only in respect of these particulars that the 11 & 12 Vict. c. 43 is not to be applicable, it would seem that such statute is applicable in all others, and amongst them in prohibiting the right of reply as enacted in sect. 14.
A second application may be made, if within the prescribed time, although the former hearing was on the merits, as a dismissal is in the nature of a nonsuit, and is not a final adjudication against the mother, or where perjury on the part of a defendant's witness on the first hearing has been discovered; but if no new evidence is produced, the justices should dismiss the case. 18 But if there has been an appeal to the quarter sessions against an order made, and the order is quashed upon the merits, that is final (Reg. v. Glyune and Others, Justices of Flintshire, 41 L. J. (N. S.) M. C. 58).
Amount to be ordered and Duration of Order.] By sect. 4 of the 35 & 36 Vict. c. 63, the justices may make an order on the putative father for the payment to the mother or to any person who may be
employed by the mother, which she is at liberty to do (8 & 9 Vict. c. 10, s. 7).
18 See Reg. v. Justices of Bucks, 18 L. J. (N. S.) M. C. 113; Reg. v. Machen, Id. 213; Ex parte Westerman, 16 Law T. 420; Reg. v. Brisby, 18 L. J. (N. S.) M. C. 175; Reg. v. Harrington, 9 Law T., N. S. 721 ; Reg. v. Gaunt, 36 L. J. (N. S.) M. C. 89; 16 Law T., N. S. 379.
appointed to have the custody of such child of a sum of money 35 & 36 Vict. weekly not exceeding 58. a-week for the maintenance and education
c. 65. of the child and of the expenses incidental to its birth and of the funeral expenses, provided it has died before the making of the order, and of such costs as may have been incurred in the obtaining of such order; and if the application be made before the birth of the child or within two calendar months after the birth of the child, such weekly sum may be calculated from the birth of the child. By sect. 5, the justices may in the order direct that the payments to be made under it in respect of the child shall continue until the child attains the age of sixteen years.
Defendant a competent Witness.] The defendant may be examined on oath for the mother if regularly summoned as a witness, or on his own behalf (see 14 & 15 Vict. c. 99, and cases thereon, Vol. I. pp. 77–80, Note 72); 19 and it is the practice to examine the defendant when he is tendered as a witness by either party.
How Money to be paid- Appointment of Guardian.] By 7 & 8 Vict. c. 101, s. 5, the money is to be paid to the mother so long as she lives and is of sound mind, and is not in any prison, and is not under sentence of transportation;—and after her death, or whilst of unsound mind, or in prison, or under sentence of transportation, two justices may, by consent, appoint some person to have the custody of the child so long as it is not chargeable, and may revoko such appointment and appoint another in his stead, a duplicate of which is to be sent to the guardians : a notice or a copy of the appointment should be served on the putative father. [Form of Appointment, No. 24, p. 722, Oke's “ Formulist 6th edit.]
Justices may appoint Parish Officer to receive Payments for Bastard Children.] By “The Poor Law Amendment Act, 1868,” 31 & 32 Vict. c. 122, s. 41, “when and so often as any bastard child for whose maintenance an order has been made by justices under the provisions of the fifth [should be 3rd] section of the 7 & 8 Vict. e. 101, shall become chargeable to any parish or union, any two justices in petty sessions may, if they shall gee fit, by order under their hands and seals, from time to time appoint some relieving or other officer of the parish or union to which such bastard child shall be so chargeable, to receive on account of such parish or union such proportion of the payments then due or becoming due under the order of petty sessions made under the provisions of the said act as may accrue during the period for which such child is chargeable ;-and such appointment shall remain in force for the period
19 See the cases of Ex parte Crowley, 24 Law T. 244 ; Reg. v. Lightfoot, 25 L. J. (N. S.) M. C. 115; Reg. v. James Berry, 28 L. J. (N. S.) 1. C. 86: 1 Bell, c. c. 46 ; Reg. v. Simmons, 28 L. J. (N. S.) M. C. 183 ; 1 Bell, C. C. 168 ; Reg. v. Fletcher, 40 L. J. (N. S.) M. C. 123 ; 24 Law T., N. S. 742.
35 & 36 Vict. of one whole year whenever the bastard child shall be or have c. 65.
become chargeable as aforesaid, and may afterwards from time to time be renewed by indorsement under the hand of any one justice for the like period;—and so much of section seven of the said act as prohibits an officer of any parish or union from receiving money under such order as aforesaid is hereby repealed [tit. "Bastards,' Vol. I., Offence 1, p. 310),—and any payment so ordered to be made shall be recoverable by the relieving officer or other officer appointed to receive it in the manner provided by section three of the said act.”
Annual Return of Summonses and Orders.] An annual return of summonses issued and orders made are to be sent to the clerk of the peace (7 & 8 Vict. c. 101, s. 11), but the clerk of the peace is not now to send it to the home secretary (21 & 22 Vict. c. 67).
Adjournment of Proceedings where two Justices are not present.] By sect. 7 of the 36 Vict. c. 9, if at the time appointed for the hearing two justices shall not be present, any one justice then present mas adjourn the hearing to a certain time and place, to be then appointed in presence of the party or parties, &c.; and in the meantime the defendant may be suffered to be at large upon his entering into a recognizance, with or without surety or sureties at the discretion of the justice, for his appearance at the time and place to which such hearing shall be adjourned.
III. Enforcing Order. Time, &c.] By 35 & 36 Vict. c. 65, s. 4, after one calendar month from the making 20 of such order, any one justice, upon oath that any sum is in arrear (and proof of due notice of the order, there being no necessity to demand the arrears, Wootten v. Hurvey, 6 East, 75], may grant a warrant for the apprehension of the putative father ; but by analogy with other cases no action lies against his executor on the order (Stevens V. Jeacocks, 17 L. J. (N. S.) Q. B. 163), and when the father dies the mother's remedy is entirely gone. The guardian appointed may, if child not chargeable to an union, &c., recover the same in the manner the woman might have done (s. 5); and by sect. 8, a penalty of £10 is imposed on him for misapplying the money or maltreating the child (see Offence 2, Vol. I. p. 310). Where the mother dies, or is incapacitated, and the child becomes chargeable to any parish or union by the neglect of the putative father, the overseers or guardians [by their officer) may make application for enforcing the order (s. 7). Although the defendant may be present at the making of the verbal order, and
20 That is, at the time the justices verbally announce their decision, and not from the time the formal order is drawn up and signed by them (Ex parte Johnson, 32 L. J. (N. S.) M. C. 193 ; s. C., Reg. v. Justices of Essex, 8 Law T., N. S. 275).
therefore may be said to have had “due notice of the said order," 35 & 36 Vict. the written order should be personally served upon the defendant, as the act does not provide any other mode, that being the law in analogous cases. (See per Lord Ellenborough, C. J., in R. v. Kingston, 8 East, 52; and see R. v. Almack, '5 B. & A. 184; R. v. Chandler, 14 East, 270.) The proof of service may be by a statutory declaration made at the time before a justice, or, if on the application for a warrant for disobedience, by a deposition on oath of the person serving. On defendant being brought up, and not paying the amount with costs attending warrant, apprehension and bringing up, two justices may order the same to be levied by distress, which warrant may be signed by one justice under sect. 29, Vol. I. p. 216, and backed under sect. 19, Id. p. 225, of 11 & 12 Vict. c. 43 (seo sect. 35, Id. pp. 129, 130). 22 Defendant may be detained until return of distress warrant. If no distress, or defendant confess he has no goods (within the magistrate's jurisdiction, 8 & 9 Vict. c. 10, 8. 8], he may be committed by two justices for not exceeding three calendar months, unless the same, and the charges of conFeyance to prison, be sooner paid (7 & 8 Vict. c. 101, s. 3); and this commitment may be signed by one justice, and backed under the same authority as the distress warrant, supra. Not more than thirteen weeks' pay can be recovered at one time where the woman has allowed the payments to be in arrear for more than that period without application to a justice (s. 3); but if she has not allowed that period to pass without application for a warrant, she is entitled to the full amount due upon each application and warrant, if more than one, and the defendant may be imprisoned for a distinct and consecutive term on each, and he is liable to the amount accruing during his imprisonment. At the expiration of each thirteen weeks an application may be made to a justice, and a warrant upon it granted; and the several warrants remain in force until executed. It would appear, from the case of Kendal v. Wilkinson (24 L. J. (N. S.) M. C. 89; Note 14, Vol. I. p. 258), that an appeal against the order does not stay the justices from enforcing it by distress and commitment.
The mode of enforcing an order of affiliation is not interfered with by “The Summary Jurisdiction Act, 1879" (see sect. 54 of
IV. Appeal against Order, &c.
22 The 11 & 12 Vict. c. 43, s. 17, Vol. I. p. 193, does not apply to an order in bastardy, so as to allow of a minute being served instead of a copy or duplicate of the order; and the usual practice is to serve a duplicate of the order, as the exception in sect. 35 of that act does not appear to authorize a minute being served.
35 & 36 Vict, making of the order [i. e. when the verbal adjudication is made at c. 65.
the petty sessions, see case in Note 20, supra), the man is to give
Guardians may recover Cost of Relief of Bastard Child in certain Cases.] The 5th section of the 36 Vict. c. 9 contains provisions enabling the guardians of a union to recover from the putative father the costs of the relief of a bastard child in their union.
9 & 10 Vict. c. 74.
BATHS AND WASHHOUSES. Sect. 23 incorporates the provisions of 8 & 9 Vict. c. 16, with respect to the accountability of the officers. See tit. " Companies Clauses Act,” post. The local board may be the commissioners (21 & 22 Vict. c. 98, s. 47).
BEERHOUSES, see " Intoxicating Liquors."
16 & 17 Vict. c. 119.
BETTING HOUSES. Warrant to enter Betting Houses.] By 16 & 17 Vict. c. 119, " An Act for the Suppression of Betting Houses,” s. 11, it is enacted, It shall be lawful for any justice of the peace, upon complaint made before him on oath that there is reason to suspect any house, office, room, or place to be kept or used as a betting house or office, con