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justices, and also make an original one upon another person, for the same child. (1)

SECT. VII.

Of appealing against Orders of Filiation and Maintenance.

sessions.

THE appeal given by the 18 Eliz. c.3. to the party ac- Appeal to what cused, arose only from his being bound over to the sessions, and the parish enjoyed no such power. (2)

49 Geo. III. c.68. s. 5. gives an appeal to any person or 49 Geo.III. persons aggrieved by an order made by justices under c. 68. s.5. the provisions of the act not originating in sessions, to the next sessions for the county where the order is made, on giving notice to such justices or one of them, and to the overseers of the parish on whose behalf the order is made, or one of them, ten clear days before the quarter sessions, of his, her, or their intention to appeal, and the cause and matter thereof, and entering into a recognizance within three days after such notice before some justice for the county, with sufficient surety conditioned to try such appeal, and abide the judgment and order of and pay such costs as shall be awarded by the sessions, who are empowered to hear and determine the appeal, and give relief and costs to either party in their discretion.

And there must be ten clear intervening days of notice Ten clear days. exclusive both of that of serving the notice, and the day

of holding the sessions. (3)

It is requisite that the causes and matters of the appeal should be specified in the notice, the object of the legislature being that the respondents should know precisely what

(1) Burrell's case, 1 Mod. 20. Pridgeon's case, 1 Bulst. 255. Pl. 648. Rex v. Smith, 2 Bulst. 342.

(2) Per Lord Hardwicke, Rex v. Jenkin, Cases Temp. Hardw. 301. post, 515. (4).

(3) Rex v. Justices of Herefordshire, 3 B. & A. 581.

objections they have to meet. Upon this ground the sessions were held to have acted rightly in refusing to hear an appeal against an order of filiation upon the following notice: "This is to give you notice, that I, H. N. of L. do intend at the next general quarter sessions, &c. to commence and prosecute an appeal against an order of filiation made by you, &c. whereby I was adjudged to be the father of a female bastard child, born on the body of E. R. and chargeable to the parish of S. in the said county;" for it does not contain any information of the cause and matter of appeal; it is merely a description of the order and not of the objections which the party charged intended to make to it. (1)

But as the act 49 Geo. III. c. 68. does not expressly Verbal notice. require the notice of appeal to be in writing, a verbal

Time for ap

notice to the justices taking the recognizance of the parties' intention to appeal, and of the cause and matter thereof, is sufficient. (2)

Where an order of filiation has been made, and the time pealing passed. for appealing against it is passed, it cannot be enforced under 18 Eliz. c. 3., but the justice of peace must proceed under 49 Geo. III. c. 68. s. 3. by commitment for three months. (3)

By sect. 7. No appeal in any case relating to bastardy shall be brought, received, or heard at the said quarter sessions, unless such notice shall have been given, and recognizance entered into in manner aforesaid.

The 18 Eliz. directs the appeal to be made to the next general sessions, after the party has notice of the order,

(1) Rex v. Justices of Oxfordshire. 1 B. & C. 279.

(2) Rex v. Justices of Salop, 4 B. & A. 626.; and see Rex V. Justices of Surrey, 5 B. & A. 559.

(3) Ex parte Addis, 1 B. & C. 87.

and made default in not performing it. (1) This meant at the next general sessions for that part of the county in which the order was made, and not the first sessions, which might happen in a distant part of it. (2) If such an order was made by two justices, during sessions' time, the appeal ought not to be to such sessions, but to that next ensuing. (3) An appeal to the next quarter sessions after notice, was once held to be bad, because under 2 Hen. V. c.4. a general sessions, to which it is directed to be made by 18 Eliz. might have intervened, and in that case, the appeal would not have been to the next general

sessions. (4) But in a more recent case, an order was made But now on the 27th March, and the reputed father appealed to the held contra. next general quarter sessions, held 22d April, when the original order was quashed. Both orders being returned by certiorari, it was moved, on the authority of Rex v. Shaw (5), to quash the order of sessions, that court having no jurisdiction, because a general sessions might have intervened. But Lord Kenyon observed, that the case cited did not appear to be one of the most authentic in Salkeld's reports. It is a general rule, that every intendment shall be made to support an order of justices; and as it does not appear that the general quarter sessions held on the 22d April, were not the sessions next following the 22d of March, we will not presume it, for the purpose of quashing the order of sessions; it was therefore affirmed. (6)

(1) It seems from the words of 18 Eliz. c. 3. that the justices' power to commit, or to take a recognizance, arises from the party's not observing or performing the order. The consequence of which seems to be, that the appeal lies not to the first general sessions after the order is made, but to the first general sessions after it is disobeyed. Dalt. 45. (2) Rex v. Coyston, 1 Sid. 149. 1 Bott, 495. Pl. 642.

(3) Burrell's case, 1 Mod. 20.

(4) Rex v. Shaw, 2 Salk. 482. 1 Bott, 496. Pl. 644. Rex v. Brown, Ib. Pl. 643. 2 Salk. 480.

(5) Supra, (4).

(6) Rex v. Guardians of the Poor of Chichester. 3 Term Rep. 496.

Sessions must

hear all the circumstances on

appeal.

How far they may quash or affirm.

Of Costs.

As an appeal brings the whole matter both of law and fact before the justices at the sessions, the parish officers must, unless the party waives it by the tenor of his notice, be prepared and able to sustain their order, by sufficient evidence (1); and it is equally competent to the party interested to resist the fact, as to take such objections as occur to himself or his counsel upon the law. But if the objections are formal only, the sessions have power to amend them, under 5 Geo.II. c.19. (2)

The majority of the justices, upon hearing the case, will either confirm or quash the order, according to their judgment and where an order is substantially good, but directs something additional, which is illegal, they may quash such defective part, and affirm the remainder. (3) But their order must be final, and either affirm or disallow that which is appealed against (4); and they cannot award costs to be taxed by the clerk of the peace. (5)

Of removing orders by cer

tiorari, when

defendant at large.

SECT. VIII.

Of removing Orders of Bastardy into the Court of King's
Bench, for the Purpose of quashing them.

Ir the defendant is dissatisfied with any order made upon him, either by two justices, or by the sessions, he may remove it into the court of king's bench by writ of certiorari.

When he is not in custody for disobedience of the or

(1) And they must begin by supporting it. Rex v. Knill, 12 East, 50. (2) As to the power of amendments under that statute, see post, title, Appeal.

(3) See infra, sect. 8. the power of the king's bench to do this.

(4) Rex v. Smith, 2 Bulst. 342.

(5) Rex v. Skinn. 1 Bott, 470. Pl. 487. And see Rex v. Sweet, 9 East, 15. Rex v. St. Mary's Nottingham, 13 East, 57.

der, he may remove it, if made by two justices, although there has been no appeal (1) to the sessions.

But where a person was in custody for disobeying an If in custody, order of bastardy made at the sessions, the court seemed must sue habeas corpus. strongly inclined to think that no certiorari ought to have been granted to remove the order; but, that the proper mode of obtaining relief, if the defendant was entitled to it, was by habeas corpus, on a return to which the causes of commitment would be specified, upon which the court would be enabled to form an opinion, whether or not those causes were sufficient to justify his detention. (2)

Defendant

must be present in court,

The defendant must be present in court when the case comes on to be heard, that if the order is quashed, he may enter into a recognizance to abide such order as may be on argument. subsequently made by the sessions. (3)

der.

tion.

When orders are thus removed, the court of king's When quash bench generally decide upon what appears on the face of the entire orthe proceedings. They will quash one therefore, 1st, If 1st, For want substantially defective, as, for instance, if there be no adju- of adjudicadication that the defendant is the putative father (4), &c. 2d, If it appear that the persons making it had no juris- 2d, Jurisdicdiction, and they will collect this not merely from the They examine order itself, but from a consideration of all those orders all the orders which have been made upon the subject, and brought before them by the writ of certiorari. Thus, if two jus- Instance.

(1) Rex v. Stanley, Cald. 172. As to the form of removing orders by certiorari, see post.

(2) Rex v. Bowen, 5 Term Rep. 156. Rex v. Smith, 2 Bulst. 342. (3) This is assigned as the reason by the Court in Rex v. Gibson, 1 Black Rep. 198. But quære, if that would have been necessary where the party had entered into a recognizance under 6 Geo.II. c.31. The necessity of his being present, is however admitted as a general rule. See Rex v. Mathews, 2 Salk. 475. Rex v. Price, 6 Term Rep. 147. where it was dispensed with. Rex v. St. Mary's, Nottingham, East, 10 Geo.II. 13 East, 57.

(4) See Rex v. Pitts, Doug. 662. and the various cases upon the form of orders thus removed, ante, 299. et seq.

tion.

removed.

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