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Rexo. “ and John Eling the sum of fixteen pounds and twelve
WHITE and "

fhillings in the faid order directed to be paid by the
ELING. “ said overseers of the poor of the said parish of St. John

to the overseers of the poor of the said parish of

. That the said Thomas White and John
* Eling, then and now being overseers of the poor or
“ the said parish of St. John, on the day and year afore-
" said, at the parish of St. Yohn aforesaid, unlawfully,
“ knowingly, and wilfully did refuse to pay to William
Lincoln and the said John Bell, or either of them, then
" and now overseers of the poor of the said parish of

Meppershall, the said sum of fixteen pounds twelve
“ Thillings, and still do refuse to pay the same, in con-
$ tempt, &c.”—Upon this indictment the defendants
were found guilty, and PEMBERTON now took three ob-
jections. First, That it did not fet out any order of
maintenance previous to the order of reimbursement, without
which first order there could be no legal foundation
for the last order. SECONDLY, That the order was
retrospective, being for the payment of a sum supposed
to have accrued under an order of maintenance, made
long before; whereas the act directs (a), that the order
of reimbursement Thall be made at the same time with the
order of relief or maintenance'; and that it was for a
gros fum for eighty-three weeks; and as inhabitants
inay change in that time, they ought not to be so char-
ged, as this circumitance, or triat of houfes being unin-
habited, would produce an inequality in the afleisment.
THURDLY, That it did not appear, upon the face of the in-
dictinent, either that the militia-man, for whom the sub-
ftitute ferved, was baliotted, or that the fubftitute was
sworn or errolled.-MURPHY and GRAHAM 1hewed
cause againt the rule to arrest the judgment; and con-
tended, in answer to THE FIRST OBJECTION, “that the or-
der of maintenance was not set out,” that the maxiin,

that, there could be no intendment made to support an (6) 1. Ventr. indictment, is not to be taken without some limitation; 361).

for there must be circumstances of inducement; that the 3. Salk. 93. order of maintenance is a judicial act, and chat after ver

diet the Court will presume it regularly made: that this
was done in the case of the King v. 1Vright (b); which

(a) The words of the act are : In case any fubftitute, whose fa" mily may become charge. ble, Mall

not ferve tor the parish where his family fall dwell, it shall be law“ ful for the justice of peace who " thall make any order for the relief

" of such family, at the fanie time to
4 direct the over seers of the parish
" for which he mall serve, to reim-
“ burse the money so paid, to the
" overseer or overseers who thall have
"s advanced the same in pursuance of
" the order beforementioned.”'


Car. 1o.

was error upon a judgment on an indictment for suffering Rexo. an escape of perions qui commiffi fuerunt by justices of the White and

ELING, peace under the statute 8. Hen. 6. for a forcible entry: the error assigned was, that it is not expressed how the commitment was made, whether upon view of the justices, or verdict upon an indictment; so that it doth not appear that they were legally committed, nothing of the proceedings being set forth, and it not being even said, debito et legitimo modo commilli ; and the Court held, that it being but inducement to the offence whereupon this indictment is, that it is well enough alledged, and after the verdict they must intend “ the commitment was “ legal.” That the case of (a) the King v. Pollard and (a) 2.Ld. Rayarı Taylor was very similar to the present; and that there in 1370. an indictment against an accessary, it was not holden ne

S. C. 2. Seff. cessary to aver that the principal could not be taken: that

S.C.3. Mod.264 the present was not the case of a penal statute ; and that Fo. 373. here every thing material was set out. As to THE SECOND OBJECTION, “ that the order of reimbursement

was not of the same date with the order of maintenance, but long after, and that it directed the payment “ of a gross fum,” they insisted, that the words of the act must reccive a reasonable construction: that, if taken ftri&tly, it would in all cases be nonsense; but that in this particular cafe it was impossible that it could be fo taken, as the order of maintenance was made (6) before the act passed that the words " at the same time" must be construed adverbially, and to mean “ also” or “like“ wife :” and that the sum directed


reasonable for the length of time; and in a large parith was too small to become the object of a new aflellinent. To THE LAST OBJECTION, that it does not appear, that the militia-man himself was ballotted, or that his fubititute was sworn or enrolled, they urged, that it appeared, that the fabstitute served for his principal; and that out of this whatever else was called for by the objection arose as neceffary inference; for that the substitute could not have served at all without having been sworn and enrolled; or in the character of substitute, had not his principal been previously ballotted and drawn:PEMBERTON, A. in fupport of the rule to arrest the judgment, infifted, First, that in criminal proceedings nothing is aided by a verdiet: that they differ altogether from civil actions: that the statutes of jeofails do not ex


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(b) This act passed on the shirtieth as the indictment states, that the of Jure 1779, and the order of main. weekly sum to be reimbursed began tenance must have been on or before to be computed on that day, NOTE the twiny-fcurb of the same month, by Mr. Celdecosi.


Rex'o. tend to them, and did not even to the cases of mandamus WHITE and and quo warranto, till the Itatute of 9. Anne, c.20.1.7.; that ELING.

the order of maintenance was not matter of inducement, but the very foundation upon which the whole authority of the magistrate rested. -- LORD MANSFIELD (hopping PEMBERTON), In indictments the crime, with which the defendant is charged, must appear with a scrupulous certainty: and here it is disobedience to the order of a justice. Now it must appear upon the face of the indictment that this was a legal order; for if it is not so, disobedience to it is no crime. Then this is an order of reimbursement, which pre-supposes an order of maintehance. Such order ncceffarily must be; for, if the overseers had made the disbursement of their own accord, and without an order for that purpose, they could not legally be reimbursed. Such voluntary payment would not have entitled them to reclaim the sum advanced, because they are not authorized to judge of circumstances. Had the justice of peace recited the order of maintenance, 'tis admitted the indictment would have been good: and had he even in general terms referred to it, the Court might perhaps (a) have presumed such order properly made. There would then have been some co. lour of authority for the jurisdiction exercised. But, fo far from having recited it, he has not made the flightest reference to it. The indictment therefore cannot be upported. Befides, the order of reimbur fement is not at all connected with the order of maintenance, though the a&t requires, that thcy should both be made by the same justice at the lume tine, i.e. that whatever shall be paid shall be reimbursed; but this is at the distance of a year, and fora gross lum.-WILLES, ASHHURST, and BULLER, Juftices, concurring,Rule absolute, and Judgmentarrested.

(a) It has been adjudged, that proceedings before the justice, but in an indiéiment where the juris. only says that the sessions, on appeal, diction exercised is founded upon a ordered, &c. &c.; and it is necellary former order, a general reference to to state positively that an order of jur such order, without staring it, is not tices was made.---THE COURT laid, sufficient to support the indictment, that the order of sessions was the H. 20. Geo. 3. Rex v. Winship ard foundation of the indictment, and if Grunwell, overseers, &c. Caid. 72.; the íeffions have jurisdiction, you can't and ante, page 359. pl. 462. But in go into the regularity of their pro. Rexv, Thomas Myiton, E!q; Faiter, ceedings; for so long as the order re. 25. Geo. 3. 5785. on an indi&tment nains in force it must be obeyed, on the 21, Geo. 3. C. 31. for dilo. and on the trial nothing could serve beying an order of fefficns at Shrews- the defendant but shewing that the bury, on an appeal against a convic. feffions have no jurisdiction. Ini tion for nor giving in a list of his male Rcx v. White, Ante, page 379, 1: did fervants, pursuant to the direction of

not appear that the fefions had jurif. the statute, MR. CALDECOT,on mo- didljon, but here the order of the lion in ariest of judgment objected, feffiuns is the gilt and foundation of shat the indictment did not itate the the indi&ment.-- Rule discharged

Editor's MSS.



B A S T A R D S.

I. The statutes relating 10 bastards.
II. Who shall be deemed bastards.
III. The duty and authority of the parish-officers.
IV. The authority of the justices.

V. The complaint and examination.
VI. The fummons and commitment.
VII. The bond of indemnity and security.
VIII. The form of the order of bastardy.

IX. Of the appeal.
X. Of the jurisdiction of the lesions.
XI. Of quafhing orders of bafiardy.
XII. The punishment of the mother and reputed father.

İ. The statutes relating to bastards.


479. Y 18. Eliz. c. 3. f. 2. it is recited, “That Bas- Any two jur

" TARDS begotten and born out of lawful ma- tices in or next “ trimony being now left to be kept at the charges of the to the parish

where a bastard parish where they be born, to the great burden of the is born, mayex“ fame parish, and in defrauding of the relief of the im- amine the mat

potent and aged true poor of the same parish ;" AND ter, and make ENACTED, “ That two justices of the peace (where

an order of baf

tardy. " of one to be of the Quorum (a), in or next unto “ the limits where the parish church is, within which (a) Vide anta,

parish such bastard ihall be born), upon exami- page 1. matisa * nation of the cause and circumstance, shall and may, “ by their discretion, take order, as well for the punish

ment of the mother and reputed father of such bastard “ child, as also for the better relief of every such parish “ in part or in all.” 480. By 18. Eliz. c. 3. “ And the said justices thall The justices and may likewise, by like discretion, take order for the way make an

order of main., keeping of every such bastard child, by charging such “ mother or reputed father with the payment of money

weekly, or other sustenation for the relief of such child, " in such wise as they shall think meet and convenient.”

481. " And


The father or 481. And by 18. Eliz.c. 3.f.2. “ If, after the same order mother of a " by them subscribed under thcir hands, any the faid perbastard child may be com

fons, viz. mother or reputed father, upon notice thereof, mitted for dir- “ shall not for their part observe and perform the said orobeying the “ der ; that then every such party so making default in not justices order : 66

performing of the said order, to be committed to ward to but the order must be in the

“ the common gaol, there to remain without bail or mainalternative, to

“prize, except he, she, or they shall put insufficient surety to give fecurity, “ perform thic faid order, or elic personally to appear at or to appeal at “ the next general fellions of the peace to be holden in be feflions.

“ that county where such order ihall be taken ; and also “ to abide such order as the said justices of the peace, or

more part of them, then and there ihall take in that be“ half (if they then and there shall take any); and that if “ at the faid sessions the faid justices ihall take no other “ order, then to abide and perform the order before made, "as is aforesaid."

The justices 482. By 7. Jac. 1. C.4.6.7. “ And because great charge may conimit the « ariseth upon many places within this realm by reason mother of bar. tard children to

so of bastardy, be it ENACTED, That every lewd woman the house of

“ which thall have any bastard which may be chargeable Borruction. “ to the parish, the justices of peace shall commit fuch

“ lewd woman to the house of correction, there to be “punished, and set on work during the term of one “ whole year; and if the shall ettfoons offend again, that " then to be committed to the said house of correction as “ aforesaid, and there to remain until the can put in good

“ fureties for her good beliaviour not to offend fo again. The sessions

483. By 3. Car. 1. C. 4. f. 15. so much of the 18. Eliz. shall have the

C. 2. as concerneth bastards begotten out of lawful mafanae authority trimony is continued; with this, “ that all justices of the tardy as are

peace within their several limits and precincts, and in given to JUS. “ their several feflions, may do and execute all things con

“ cerning that part of the said statute, that by juflices of “ the peace in the several counties are by the faid statute « limited to be done.


Potative fathers 484. By 13.& 14. Car. 2. c. 12. f. 19. “And whereas the of baltard chile 16

putative fathers and lewd mothers of bastard child, en run dren, how to be so proceeded

away out of the parish, and sometimes out of the against.

county, and leave the faid bastard children upon the charge of the parish where they are born, although sucht

putative father and inother have estates fufficient to “ discharge such parish ; BE IT ENACTED), that it shall “ and may be lawful for THE CHURCHWAR DENs and OVERSEERS for the poor of such parish, where any “ bastard child shall be barn, to take and seize so much

" of

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