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Sessions must hear all the circumstances on
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)
How far they The majority of the justices, upon hearing the case, will may quash or 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)
orders by cer
defendant at large.
Of removing Orders of Bastardy into the Court of King's
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
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 hastrongly 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)
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 subsequently made by the sessions. (3)
Defendant must be present in court, on argument.
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 removed. 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. 15 East, 57.
(4) See Rex v. Pitts, Doug. 662. and the various cases upon the form of orders thus removed, ante, 299. et seq.
3d,Where reason for adju
Where quash only part.
Order of sessions, how far conclusive.
tices make an order of filiation upon A. and it is quashed by the sessions upon appeal, and then, two justices make another order upon A. as the reputed father of the same child, the court will quash this last order, because they will take notice that the former was conclusive, and discharged the defendant. (1) 3d, Although the magistrates need not set forth their reasons for the adjudication, yet if they do so, and they appear insufficient, the court will quash the order. (2)
But where an order is defective only in one point, so that the remainder may subsist as a good order by itself, they will quash it as to the defective part, and confirm it as to the rest. Thus, where one, in other respects good, directed the defendant "to give security to the parish to perform the order," it was confirmed as to every thing but the security, and quashed as to that. (3) So, where an order of sessions awarded costs to be paid by the defendant, to be taxed by the clerk of the peace, the court confirmed the order, except as to the costs, and quashed so much of it. (4)
Order of Filiation, &c. how far conclusive.
If a person be adjudged the reputed father of an illegitimate child by the justices at sessions, it is a sentence by the authority of the law, which cannot be impeached in the spiritual court, or elsewhere; and all are concluded to say the contrary, until it is reversed. (5)
(1) Rex v. Tenant, 2 Str. 716. post, 315. (2).
(3) Per Holt C. J., Comb. 264. Rex v. Fox. 307.(1). Rex v. Messenger, 1 Bott, 468. Pl. 585. Rex v. Price, 6 Term Rep. 247. ante, 313. (3), ante, 308. (1).
(4) Rex v. Skinn, 1 Bott, 470. Pl. 487. ante, 312. (5). Rex v. Sweet, 9 East, 25.
(5) Webb v. Cooke, Cro. Jac. 535. and 626. Thornton v. Pickering,
An order of sessions made upon appeal, is not only final where it affirms the original order (1), but also where it reverses it.
An order of filiation was made by two justices, and afterwards discharged by the sessions upon appeal, after the merits were fully heard; neither two justices (2), nor a subsequent sessions, can make a new order for this matter against the same person. (3) For being legally acquitted, he cannot be drawn in question again for the same fault. And it would be absurd, that when two justices have power by law to make original orders, and when the sessions have power upon appeal from those orders, as well as by original application, that two justices should have a power to alter their orders, when those very orders of alteration might be reversed by the sessions. (4)
But it must be made upon hearing the merits. If they discharge an order for form, a new one may be made. (5) And where an order of sessions quashing one made by two justices, recited, that it "was made on full hearing; the court of king's bench held, that the merits must have come before the sessions, and that the discharge was conclusive. (6)
An order of filiation made by justices out of sessions, is conclusive when unappealed from; but they have no power to make one to discharge the person charged as the
1 Freem. 283. 3 Keb. 200. cited 1 Ld. Raym. 394. Yet see a dictum of Holt C. J., that if a person be committed as the father of a bastard child, and the child is no bastard, an action will lie. Dr. Greenvell's case, Comb. 482. Neither can it conclude the infant.
(1) Rex v. Arundell, 1 Sett. Cas. 234.
(2) Rex v. Tenant, 2 Ld. Raym. 1423. Slater's case, Cro. Car. 471. ante, 307. (3). Anon. 1 Vent. 59.
(3) Pridgeon's case, 1 Bulst. 252.
(4) Per Lord Hardwicke, Rex v. Jenkin, Cas. Temp. Hard. 301. (5) Semb. Rex v. Teriam, 1 Bott, 500. Pl. 655.
the order of
sessions quashing or affirming an original is final.
To be final,
must be made
on the merits.
Order of two justices, how
an order to ad
judge the de
fendant not to be the father.
Cannot make reputed father, and to adjudge him not to be so; for they have no jurisdiction to acquit or convict the parties, but to take order for the relief of the parish, or punishment of the party, these being the only two sorts of orders which the statute empowers them to make. It would be inconvenient, also, to hold, that two justices may make a final order; for the statute 18 Eliz. c. 3. gives the parish no appeal; and the appeal for the party accused arises only from his being bound over to the sessions; but if the two justices might make a final order of discharge, there is no method for the parish to appeal, but they would be concluded for ever without relief. (1)
Parish has no
right to appeal.
But the adjudication by the sessions on appeal is final only as it respects the party who was adjudged the putative father by the original order; for if that order be repealed, the matter is as res integra so far as it respects all other persons. (2)
Methods of indemnifying the parish.
Of the Remedies to indemnify the Parish.
THE chief object of all the statutes passed on the subject of bastardy, from 18 Eliz. c. 3. down to 49 Geo. III. c.68. is to secure an indemnity to the parish, in which the child
(1) See Rex v. Jenkin, Cases Temp. Hardw. 301. 2 Str. 1050. S. C. But it has been shown that a general sessions does possess this power of discharging the party upon application to them for an original order. See Rex v. Jenkin, supra, and the cases cited ib. by Lord Hardwicke. In Slater's case, there was an original order of sessions discharging the person who was charged to be the putative father. Two justices afterwards made an order affiliating the child upon him. This order was resolved to be void, and that originally made at sessions to be final. Cro. Car. 374. See ante, 315. (2), (3).
(2) See Rex v. Smith, 2 Bulst. 345.