REX v. WHITE and " ELING.

(b) 1. Ventr.

$69.

3. Salk. 93.

"and John Eling the fum of fixteen pounds and twelve
fhillings in the faid order directed to be paid by the
"faid overfeers of the poor of the faid parish of St. John
"to the overfeers of the poor of the faid parish of
"Mepperfball. That the faid Thomas White and John
"Eling, then and now being overfeers of the poor or
"the faid parish of St. John, on the day and year afore-
"faid, at the parish of St. John aforefaid, unlawfully,
"knowingly, and wilfully did refufe to pay to William-
"Lincoln and the faid John Bell, or either of them, then
"and now overfeers of the poor of the faid parish of
"Meppershall, the faid fum of fixteen pounds twelve
"fhillings, and ftill do refufe to pay the fame, 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 firft order there could be no legal foundation
for the last order. SECONDLY, That the order was
retrospective, being for the payment of a fum fuppofed ·
to have accrued under an order of maintenance, made
long before; whereas the act directs (a), that the order
of reimbursement fhall be made at the fame time with the
order of relief or maintenance; and that it was for a
grofs fum for eighty-three weeks; and as inhabitants
may change in that time, they ought not to be so char-
ged, as this circumftance, or that of houfes being unin-
habited, would produce an inequality in the aficilment.
THIRDLY, That it did not appear, upon the face of the in-
dictment, either that the militia-man, for whom the fub-
ftitute ferved, was baliotted, or that the fubftitute was
fworn or enrolled.-MURPHY and GRAHAM fhewed
caufe against the rule to arreft the judgment; and con-
tended, in anfwer to THE FIRST OBJECTION, "that the or
"der of maintenance was not fet out," that the maxim,
that there could be no intendment made to fupport an
indi&tment, is not to be taken without fome limitation;
for there must be circumftances of inducement; that the
order of maintenance is a judicial act, and that after ver-
dict the Court will prefume it regularly made: that this
was done in the cafe of the King v. Wright (b); which

(a) The words of the act are: "In cafe any fubftitute, whofe fa"mily may become charge.ble, fhall "not ferve tor the parish where his "family fhall dwell, it fhall be law"ful for the juftice of peace who "hall make any order for the relief

"of fuch family, at the fame time to "direct the overfeers of the parish "for which he fhall ferve, to reim"burfe the money fo paid, to the "overfeer or overfeers who shall have "advanced the fame in purfuance of "the order beforementioned."

was

66

REX V.

ELING.

Caf. 10.
S.C.8.Mod.264

was error upon a judgment on an indictment for fuffering an escape of perfons qui commiffi fuerunt by justices of the WHITE and peace under the ftatute 8. Hen. 6. for a forcible entry: the error affigned was, that it is not expreffed how the commitment was made, whether upon view of the juftices, or verdict upon an indictment; fo that it doth not appear that they were legally committed, nothing of the proceedings being fet forth, and it not being even faid, debito et legitimo modo commiffi; 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 muft intend "the commitment was "legal." That the cafe of (a) the King v. Pollard and (a) 2.Ld.Raym Taylor was very fimilar to the prefent; and that there in 1370. an indictment against an acceffary, it was not holden ne- S. C. 2. Seff. ceffary to aver that the principal could not be taken: that the present was not the cafe of a penal ftatute; and that Fo. 373. here every thing material was fet out. As to THE SECOND OBJECTION," that the order of reimbursement was not of the fame date with the order of mainte"nance, but long after, and that it directed the payment "of a grofs fum," they infifted, that the words of the act must receive a reasonable conftruction: that, if taken ftrictly, it would in all cafes be nonfenfe; but that in this particular cafe it was impoffible that it could be fo taken, as the order of maintenance was made (b) before the act paffed: that the words "at the fame time" muft be conftrued adverbially, and to mean "alfo" or "like"wife:" and that the fum directed was very reasonable for the length of time; and in a large parish was too fmall to become the object of a new affeffment. To THE LAST OBJECTION, that it does not appear, that the militia-man himfelf was ballotted, or that his fubftitute was fworn or enrolled, they urged, that it appeared, that the fabftitute ferved for his principal; and that out of this whatever elfe was called for by the objection arofe as neceffary inference; for that the fubftitute could not have ferved at all without having been fworn and enrolled; or in the character of fubftitute, 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 verdict: that they differ altogether from civil actions: that the ftatutes of jcofails do not ex

(b) This act paffed on the thirtieth of Jure 1779, and the order of maintenance must have been on or before the twenty-fourth of the fame month,

as the indictment states, that the
weekly fum to be reimbursed began
to be computed on that day. NOTE
by Mr. Caldecott.

tend

REX v.

ELING.

tend to them, and did not even to the cafes of mandamus WHITE and and quo warranto, till the ftatute of 9. Anne, c. 20. f. 7.; that the order of maintenance was not matter of inducement, but the very foundation upon which the whole authority of the magiftrate refted. LORD MANSFIELD (Shopping PEMBERTON), In indictments the crime, with which the defendant is charged, must appear with a fcrupulous certainty and here it is difobedience to the order of a juftice. Now it must appear upon the face of the indictment that this was a legal order; for if it is not fo, difobedience to it is no crime. Then this is an order of reimbursement, which pre-fuppofes an order of maintenance. Such order neceffarily muft be; for, if the overfeers had made the difburfeinent of their own accord, and without an order for that purpofe, they could not legally be reimburfed. Such voluntary payment would not have entitled them to reclaim the funi advanced, because they are not authorized to judge of circumstances. Had the juftice 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 prefumed fuch order properly made. There would then have been fome colour of authority for the jurifdiction exercifed. But, fo far from having recited it, he has not made the flightest reference to it. The indictment therefore cannot be fupported. Befides, the order of reimbursement is not at all connected with the order of maintenance, though the at requires, that they fhould both be made by the fame justice at the fame time, i. e. that whatever fhall be paid Thall be reimburfed; but this is at the diftance of a year, and for a grofs fum.-WILLES, ASHHURST, and BULLER, Juftices, concurring,Rule absolute, and Judgment arrested.

(a) It has been adjudged, that in an indictment where the jurif. diction exercifed is founded upon a former order, a general reference to fuch order, without ftating it, is not fufficient to fupport the indictment. H. 20. Geo. 3. Rex v. Winship and Grunwell, overfeers, &c. Caid. 72.; and ante, page 359. pl. 462. But in Rexv. Thomas Mytton, Efq; Eafter, 25. Geo. 3. 1785. on an indictment on the 21. Gen. 3. c. 31. for difobeying an order of feffions at Shrewfbury, on an appeal against a conviction for not giving in a lift of his male fervants, purfuant to the direction of the itatute, MR. CALDECOT, on motion in arreft of judgment obje&cd, that the indictment did not flate the

proceedings before the juftice, but
only fays that the feffions, on appeal,
ordered, &c. &c.; and it is neceffary
to ftate pofitively that an order of juf-
tices was made.-THE COURT faid,
that the order of feffions was the
foundation of the indiЯment, and if
the fefions have jurisdiction, you can't
go into the regularity of their pro-
ceedings; for fo long as the order re-
mains in force it must be obeyed,
and on the trial nothing could ferve
the defendant but fhewing that the
feffions have no jurifdiction.
Rex v. White, Ante, page 379, i did
not appear that the feffions had juril-
diction, but here the order of the
feffions is the gift and foundation of
the indictment.-Rule difcharged.
Editor's MSS.

In

CHAP

CHAPTER THE EIGHT H.

BASTARD S.

479.

1. The ftatutes relating to baftards.
II. Who fhall be deemed bastards.

III. The duty and authority of the parish-officers.
IV. The authority of the juftices.

V. The complaint and examination.
VI. The fummons and commitment.
VII. The bond of indemnity and fecurity.
VIII. The form of the order of baftardy.
IX. Of the appeal.

X. Of the jurifdiction of the feffions.
XI. Of quashing orders of baftardy.

XII. The punishment of the mother and reputed father.

1. The ftatutes relating to baftards.

BY

66

where a baftard

Y 18. Eliz. c. 3. f. 2. it is recited, "That BAS- Any two jufTARDS 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 "parish where they be born, to the great burden of the is born, may exfame parish, and in defrauding of the relief of the im- amine the matpotent and aged true poor of the fame parifh;" AND ter, and make ENACTED, "That two juftices of the peace (where- an order of baf"of one to be of the Quorum (a), in or next unto tardy,

66

"the limits where the parish church is, within which (a) Vide ante, parifh fuch baftard fhall be born), upon exami- page 1. notic "nation of the caufe and circumftance, fhall and may,

"by their discretion, take order, as well for the punish"ment of the mother and reputed father of fuch baftard "child, as alfo for the better relief of every such parish "in part or in all.”

order of maintenance.

480. By 18. Eliz. c. 3. "And the faid juftices fhall The juftices "and may likewife, by like difcretion, take order for the may make an "keeping of every fuch baftard child, by charging fuch "mother or reputed father with the payment of money weekly, or other fuftenation for the relief of fuch child, * in fuch wife as they fhall think meet and convenient."

66

481. "And

The father or mother of a baftard child may be com

mitted for difobeying the

but the order

481. And by 18. Eliz. c. 3. f. 2. "If, after the fame order "by them fubfcribed under their hands, any the faid per"fons, viz. mother or reputed father, upon notice thereof, "fhall not for their part obferve and perform the faid or"der; that then every fuch party fo making default in not juftices order: "performing of the faid order, to be committed to ward to "the common gaol, there to remain without bail or main"prize, except he, fhe, or they fhall put in fufficient furety to "perform the faid order, or elfe perfonally to appear at the next general feffions of the peace to be holden in "that county where fuch order fhall be taken; and alfo "to abide fuch order as the faid juftices of the peace, or "more part of them, then and there fhall take in that be

must be in the alternative, to give fecurity, OR to appeal

the feffions.

The justices

mother of baf

at

tard children to the houfe of Correction.

half (if they then and there fhall take any); and that if "at the faid feffions the faid juftices fhall take no other "order, then to abide and perform the order before made, "as is aforefaid."

482. By 7. Jac. 1. c. 4. f. 7. “And becaufe great charge may commit the arifeth upon many places within this realm by reafon "of baftardy, BE IT ENACTED, That every lewd woman "which fhall have any baftard which may be chargeable "to the parish, the juftices of peace fhall commit fuch "lewd woman to the house of correction, there to be "punished, and fet on work during the term of one "whole year; and if the fhall eftfoons offend again, that "then to be committed to the faid house of correction as "aforefaid, and there to remain until the can put in good "fureties for her good behaviour not to offend fo again.

The SESSIONS

fhall have the fame authority

in cafes of baj. tardy as are

given to Jus

TICS OF PEACE.

Putative fathers

of battard chil

483. By 3. Car. 1. c. 4. f. 15. fo much of the 18. Eliz. c. 2. as concerneth bastards begotten out of lawful matrimony is continued; with this, "that all juftices of the "peace within their feveral limits and precincts, and in "their feveral feffions, may do and execute all things concerning that part of the faid ftatute, that by juflices of "the peace in the feveral counties are by the faid statute "limited to be done.

drep, how to be..

proceeded against.

66

484. By 13. 14. Car. 2. c. 12.f. 19. "And whereas the putative fathers and lewd mothers of baftard children run away out of the parish, and fometimes out of the county, and leave the faid baftard children upon the charge of the parifh where they are born, although fuch "putative father and mother have eftates fufficient to "difcharge fuch parifh; BE IT ENACTED, that it fhall "and may be lawful for THE CHURCHWARDENS and "OVERSEERS for the poor of fuch parifh, where any “bastard child fhall be born, to take and seize so much

"of