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35 & 36 Vict. sessional division, city, borough, or other place in which such

c. 65.

justice usually acts."

The application before birth is to be upon oath (s. 2), and the summons is to issue to the man to appear on a day after the time when the mother expects the child to be born,-and the same may be adjourned from time to time if she cannot attend or the child is not born at the time appointed by the summons; but the order cannot be made on that application if she does not apply at the petty sessions within the space of two calendar months from the birth of the child (8 & 9 Vict. c. 10, s. 4).14 She might, however, commence her proceedings de novo, and make an application after birth. [Forms of Application, Nos. 1, 3 and 5, pp. 704, 703, 706, Oke's "Formulist, 6th edit.]

In the case of twins one application and summons, although two are recommended, would suffice; and in the order a separate weekly sum should be awarded for each, so that if one child should die, a distinct sum may appear on the face of it to be payable for the other.

A summons is to be issued to the person alleged to be the father, to appear at the petty sessions, to be holden after the expiration of six days at the least [i. e. clear days, exclusive of the first and last days], for the petty sessional division, &c. in which such justice usually acts (35 & 36 Vict. c. 65, s. 3, and Note 13, p. 1333).

Witnesses.] Any justice may, on request of either party, grant a summons to a witness; on non-appearance, and proof of personal service and reasonable expenses tendered, a warrant may be granted. On appearance refusing to give evidence, committed to prison for not exceeding fourteen days, or until he shall sooner submit himself to be examined (7 & 8 Vict. c. 101, s. 70).

II. Hearing and making of the Order.

Hearing.] By 35 & 36 Vict. c. 65, s. 4, after the birth of the child, on the appearance of the person summoned [personally, or by counsel or attorney, 8 & 9 Vict. c. 10, s. 7], or on proof of the summons having been duly served on such person, or left at his last place of abode six days at least before (vide supra), 15 the justices in petty

14 Where the putative father has paid the mother a sum in full, it is no bar to the mother's afterwards applying for, and the justices making, an order, but they ought to take such contract into consideration with the other circumstances, and then exercise their discretion as to making the order (Follit v. Koetzow, 29 L. J. (N. S.) M. C. 128; 2 Law T., N. S. 178). See also Crowhurst and Wife v. Laverack, 22 L. J. (N. S.) Exch. 57, and the terms of 7 & 8 Vict. c. 101, s. 3, supra, which seems to admit of an order being made adjudging the man to be the putative father, without adjudging the sum for maintenance.

15 Service of Summons.] A summons to the putative father cannot be served in Scotland, or out of England and Wales, and justices have no

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sessions as before stated are to hear the evidence of the woman,- 35 & 36 Vict. and if corroborated in some material particular by other testimony c. 65. [i.e. by some other witness 16] to their satisfaction, they may adjudge the man to be the putative father;-and if they see fit, having regard to all the circumstances, make an order on him for payment to the mother, or to any other person appointed to have the custody of the child under the provisions of this act, of a sum of money weekly [see Note 14, ante, p. 1334, and see p. 1336, "Amount to be ordered," &c.], and of the costs of obtaining the order, 17, and of the expenses incidental to the birth of such child

jurisdiction to make an order upon such service. (Per Erle and Crompton, JJ., Lord Campbell, dissentient, Reg. v. Lightfoot, 25 L. J. (N. S.) M. C. 115; 27 Law T. 235.) In Reg. v. Higham (26 L. J. (N. S.) M. C. 116), a man having reason to anticipate proceedings against him as the putative father of a bastard child, born in the previous November, on the 17th July left his father's house where he had hitherto lived, and went to reside with a farmer in another part of the country, whom he assisted in the farm, having no intention, when he left, to return to his father's house; the summons was left at the father's house on the 29th of July, and was held a good service "at the last place of abode." If the service at the abode has been regular, although the defendant is absent for a short period, the justices are not obliged to adjourn the hearing till his return home (Reg. v. Brown, 1 Law T., N. S. 29; and Reg. v. Damerell, 37 L. J. (N. S.) M. C. 21). By sect. 4 of the 36 Vict. c. 9, it is enacted, that "in cases where the putative father of any bastard child resides out of the petty sessional district where the mother applies for a summons or order of maintenance, it shall be lawful to prove by affidavit in the form referred to in the second schedule to this act, or to the like effect that such summons or order has been duly served. Any affidavit purporting to be so made and attested shall be received in evidence and shall be deemed to be duly made and attested until the contrary be shown." As to the issue of summonses, see Note 12, p. 1333.

16 Evidence of language made use of by the defendant which may be construed into an admission by him that he was the father of the child, will entitle the justices to determine that the evidence of the mother has been corroborated in a material particular (see Reg. v. Pearcy, 18 Law T. 238; 17 Q. B. 902; 16 Jurist, 193). In dealing with the question of the existence and effect of corroborative evidence, the justices will not be confined to the consideration of the facts which occurred at or about the time when the child must have been begotten, but they may consider any circumstances, though long antecedent to that time, if they are of opinion that they lead to a moral conviction of their corroborating the woman's evidence (Cole v. Manning, L. R., 2 Q. B. D. 611; 46 L. J., M. C. 175; 35 Law T. Rep. 941; 43 J. P. 468). In the case of an application after the twelve months from the birth, proof also should be given of payment of money within that period (see Reg. v. James Berry and Reg. v. Fletcher, supra, Note 19); but the act does not require the mother's evidence to be corroborated in this particular (Hodges v. Bennett, 29 L. J. (N. S.) M. C. 224; 2 Law T., N. S. 190). Unless the question put to the mother affect the paternity of the child, her answers are conclusive, and witnesses cannot be called to contradict her on the point (Reg. v. Gibbons, 31 L. J. (N. 8.) M. C. 98; 1 Leigh & Cave, C. C. 109); but if it does so affect the gist of the inquiry, evidence to contradict her may be received (Garbutt v. Simpson, 32 L. J. (N. S.) M. C. 186; 8 Law T., N. S. 423).

17 This would include the expenses of witnesses according to the usual allowance settled by the county, and the counsel or attorney's fees, if one

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c. 65.

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. Glynne 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. 65, 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.

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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 revoke 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. c. 101, shall become chargeable to any parish or union, any two justices in petty sessions may, if they shall see 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.) M. 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.

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35 & 36 Vict. of one whole year whenever the bastard child shall be or have 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 may 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. Harvey, 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, Law T., N. S. 275).

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