Testimony of married woman, how far competent to bastardize her child. witness examined, for the order goes on: "And further," &c. by which it must be understood, that it further appeared to the justices, that upon the examination of the said M. C., taken on oath, &c. in the presence of R. T., she charged the defendant with being the father, &c. Then it is not a strained inference to make, that the original examination, from whence this appeared to the justices, was produced and verified upon the oath of R. T. Besides, this is a case after appeal to the sessions, where it must be taken that these objections, if founded in fact, would have been proved and admitted; and that if either not made, or made and over-ruled, they were without foundation in fact. Then if the woman was dead, the proceeding upon her examination afterwards is fully warranted by Rex v. Ravenstone. (1) As to the objection, that it did not appear that the woman was dead, the contrary must be intended, for the title of the order described M. C. as being deceased; and she was mentioned in the body of it as the said M. C., which refers to the woman said in the title of it to be dead. (2) It is now settled, that where an illegitimate child is charged to have been begotten upon a married woman, the justices need only enquire whether the husband's nonaccess is distinctly proved. (3) The wife may in such case give evidence of the criminal conversation; but she shall not be permitted to prove the absence and want of access of her husband, since there is no necessity that can justify her being a witness to these circumstances. (4) (1) Ante, 294. (4). (2) Rex v. Clayton, 3 East, 58. (5) Rex v. Bedall, 2 Str. 1076. Cas. Temp. Hard. 379. S. C. ante, Vol. 1. 332. et seq. (4) Rex v. Reading. Cas. Temp. Hard. 79. ante, Vol. I. 535. (2). Andr. 10. Ford's MSS. states the facts of this case thus: "John Alman was husband of Mary Almɛn, and leaving her upon the 25th May, 1731, had no access to her from that time till the 25th May, 1735, upon which day she was delivered of a bastard child, begotten by the defendant Reading: all which was proved by the evidence of Mary Alman. mony bad. When an order, therefore, was made upon the oath of Order upon her a married woman alone, who swore that her husband was single testiin gaol long before her bastard child was begotten, and ever since, and that she had no access to him, and that R. got the bastard, it was quashed. Per Curiam. It was said by Lord Hardwicke, in Rex v. Reading (1), that although a wife may be admitted to prove the fact of adultery, she shall not be admitted to prove that her husband had no access, because that can be proved by other persons, and an order of bastardy, therefore, could not be made on her testimony alone. The case of Rex v. Bedall (2) differs from this, for there were witnesses to prove the husband had no access; and as the justices have determined solely on the evidence of a wife, the order must be quashed. (3) But if other witnesses are examined to prove the husband's nonaccess, it does not vitiate the order that the wife is likewise examined to that fact. (4) The putative father's presence, during the woman's examination, is unnecessary to the validity of the order. (5) But he must be summoned to appear previous to an order being made (6); and a summons by another justice who does not join in the order is sufficient. (7) There were other witnesses who proved that the husband was within seven miles of his wife within that time." See Rex v. Luffe, 8 East, 196. n. (2). Lord Ellenborough agrees to the doctrine in the text, but adds, "By a parity of reasoning it should seem, that if she be admitted of necessity to speak to the fact of the adulterous intercourse, it might be also perhaps competent to her to prove that the adulterer alone had that sort of intercourse with her by which a child might be produced within the limits of time which nature allows for parturition." Rex v. Luffe, ib. 203. (1) Ante, 294. (4). (2) Ante, 294. (3). (3) Rex v. Rook, 1 Wils. 340. (4) Rex v. Bedall, ante, 294. n.(3). Rex v. Luffe, 8 East, 193. (5) Rex v. Upton Gray, Cald. 308. 2 Bott, 479. Pl. 599.; and see Rex v. Martyr and Fulham, 13 East, 55. ante, 288. (3). (6) Rex v. Cotton, 1 Sess. Cas. 179. (7) Rex v. Neale, 1 Bott, 482. Pl. 605. post, 308. Father s sence during woman's ex amination unnecessary. Must be summoned previous to making order. Woman's examination, taken before two justices. May commit As the examination of the woman is a judicial act, both justices must be present when it is taken (1), although it is sufficient if one examine her. (2) If she refuse to be examined, the justices may commit her to prison (3); but if she refuses to they must not only be together at the examination, but when they make and sign the commitment. (4) answer. Adjudication without examining the mother. Father's confession. If the mother die previous to an order of filiation being made, and without having been examined under 6 Geo.II. c.31. one may be afterwards made upon the reputed father, by means of other evidence. Cases will rarely occur in which justices can extract sufficient proof from other sources to warrant them in making it; but when such testimony does exist, as supposing the man to have acknowledged the child to be his, and to have maintained it as such, it seems enough to warrant an adjudication that he is the putative father. For though the justice cannot compel him to give testimony in this case, yet there is no fault in admitting him to do it. (5) (1) Rex v. Beard, 2 Salk. 478. 6 Mod. 180. 1 Bott, 478. Pl. 595. 1 Bott. 478. Pl. 598. (2) Rex v. West, supra. 1 Bott, 477. Pl. 594. Rex v. West, Billings v. Prinn, 2 Black Rep. 1017. (3) This appears to be taken for granted in Billings v. Prinn, ante, (1) As to the form, see ante. Their right to commit seems undeniable, where there is a refusal to answer on enquiry respecting the putative father, under 49 Geo. III.; for such questions do not tend to criminate the woman. But it does not seem decided, whether magistrates, when proceeding under 18 Eliz. c. 3. can compel a woman to answer questions which go to prove her to be the mother of an illegitimate child, as her answer may subject her to both civil and ecclesiastical punishment. A dis tinction however may arise where the woman resides with the child, and both are chargeable, for, in that case, the right to examine seems incident to the right to enquire into their settlement as paupers. See ante, chap. xxix. sect. 1. and also the Vagrant Act; and, indeed, possession of the child seems to amount to presumptive evidence, that the woman who has it is the mother. (4) Billings v. Prinn, ante, (1). But see ante, Vol. I. 54. (8), The bastard likewise may, if competent in other respects, be examined upon oath; for though it would be ridiculous to examine her as to the certainty of her father, yet she may properly enough be examined as to some circumstances relating to it; as, whether the man when accused with it had acknowledged the child to be his, or whether it was constantly reputed to be so, and such like. (1) the summons. If he do not appear, can make no de If the party obeys the summons and appears, he may Defendant's make his defence against the charge. But if he will not appearance to attend himself, there is no reason that the justices should hear any witnesses or defence made for him; for if that were allowed no offender of this sort would appear. It is but as this court (2) does, when orders of bastardy are removed hither by certiorari, which never allows any exceptions to be taken to the order, unless the party attend in person. (3) But it seems a reasonable exception to this rule, that where the person charged is under any incapacity of attending by illness or otherwise, the justices may, and ought to receive evidence on his behalf. (4) fence. made. If the justices, upon hearing the evidence on both sides, Order of basare satisfied that the person charged in the woman's ex- tardy when amination, is father of the child, they should proceed to fix him with it by an order of filiation. It may be made at any distance of time, as fourteen years after the child is born (5), and notwithstanding the mother's death. (6) (1) Rex v. St. Mary's, Nottingham, 13 East, 57. (2) The King's Bench. (3) Rex v. Neal, 1 Bott, 482. Pl. 605. (4) 1 Burn's Just. tit. Bastard, 255.; cites Rex v. Taylor and Neale, 2 Sess. Cas. 192. Cas. Temp. Hard. 112., and Serjeant Hill's MSS. (5) Rex v. Miles, 1 Sess. Cas. 77. (6) Rex v. Ravenstone, Term Rep. 373. ante, 292. (4).; also Rex v. St. Mary's, Nottingham, ante, (1)., where the daughter when affiliated was thirty-five years old. 1. Order may be on both parents, and of their chil dren. SECT. V. Form of an Order of Filiation. (1) 1. AN order may include more bastard children than one, if begotten by the same father upon the same moinclude several ther. (2) So likewise it may be made upon the mother (3); and it may be a joint order upon the mother and reputed father requiring each of them to pay a certain proportion of the child's maintenance. (4) And in one case, an order that the mother should maintain her child till seven years old, and the father should allow 1s. per week during that time, was quashed for another defect, but no objection was taken on this account. (5) 2. State the diction. The county. Sufficient in the margin. Byjustices of a liberty. 2. An order must state the authority of the justices. justices' juris- The county, therefore, should be set forth, to show that the fact arose where they have jurisdiction. But if it appear in the margin that is sufficient; for the reason why the county should be in the margin, is to show that the fact arose within the justices' jurisdiction. (6) And where an order appeared to be made by two justices of the liberty of the Tower of London, which has a separate commission of the peace, with officers, and quarter sessions of its own, Lord Hardwicke observed, I do not know whether the want of an averment in what county the liberty is, be an exception on 18 Eliz. c.3.; however, that is fully cleared up by 3 Car.I. c.6. (7): and the court held the original order good as to this exception. (8) (1) See ante, title Order of Removal, 206. et seq., and of Maintenance, 259, &c. (2) Rex v. Skinn. 1 Bott, 470. Pl. 587. (3) Rex v. Ellen Taylor, 3 Burr. 1679. (4) Comb, 232. (5) Rex v. Willey, 1 Bott, 490. Pl. 682. See also Reg. v. Collins, 11 Mod. 178. But in Burnell's case, 1 Vent. 48., and in Sherman's case, ib. 211., such orders were held bad. (6) Rex v. Messenger, 1 Bott, 491. Pl. 653. (7) Which gives justices of a liberty the same jurisdiction as justices of a county. (8) Rex v. Messenger, ante, (6). |