tried the caufe, over-ruled the objection, and a verdict was found for the plaintiffs.-A rule having been granted to thew cause why the verdict fhould not be fet afide, and a nonfuit entered, BOND, Serjeant, repeated the objection which he made at the trial; and cited the cafe of Simpfon v. Johnfon.-COCKELL, Serjeant, was going to fhew caufe; but was stopped by THE COURT, who held clearly, that an order of juftices was not necessary to make the officers of the parish liable to do what they were otherwise under a legal obligation of doing, namely, to provide neceffaries for the children; and therefore difcharged the rule. IV. The authority of the juftices. HAYS W. BRYANT. under the 18. Eliz. c. g. 541. Smith's Cafe, Mich. Term, 6. Car. 1. 2. Bulft. 342. The two juftices -On a return to a habeas corpus it appeared, that two justices, upon examination and proof made before them, had muft take a adjudged Smith to be the reputed father of a baftard child; bond from the upon which they made an order against him, under the reputed father 18. Eliz. c. 5. for maintenance to be provided for the of a baftard child to perform faid child, and for difcharge of the parith; and that by the order or virtue of a warrant made by one of the faid juftices Smith to appear at was committed for non-performance of the order.—the feilions. JONES, Juftice. The juftices have no power by the 18. Eliz. c. 3. to commit any one for non-performance of their order, but the two first and next juftices are to take bond or recognizance, which ought to be in the disjunctive, to perform the order by them made, ok to appear at the next quarter-feflions, and to abide the order there (a).-But THE COURT as reed, that when the (a) Vide Eve's recognizance is properly taken, one juftice of the peace where this is Cafe, pl. 542. by his warrant may commit. confirmed. reputed father 542. Rex v. Eve, Hilary Term, 34 35. Car. 2. 2. Show. The juftices 256.-Two juftices adjudge John Eve to be the reputed may order the father of a baftard child, and ordered the faid John Eve to not only to pay pay weekly from the birth of the faid child the fum of a weekly fum two fhillings and fixpence unto the overfeers of the poor for the mainfor its maintenance, unless the said John Eve fhall other- tenance of the wife discharge the faid parish of fuch burthen as may child, but a accrue thereunto by reafon of fuch baftard child and grofs fum for they further order the faid John Eve to pay the fum of dinary expences forty fillings towards the extraordinary charges of the of the mother's lying-in of the mother: and laftly, that the faid delivery. John Eve do immediately put in fufficient furety for the due performance of the order.--SIR BAR. SHOWER MOV ed the extraor REX v. EVE. (a) Ante, pl. 548. The order of justices is conclufive of the fact of baftardy until it is reverfed. Salk. 524. Carth. 516. ed to quash this order: first, because there is a fum ordered befides the weekly payment: and, fecondly, upon the authority of Smith's cafe (a), becaufe fecurity is ordered to be given for performance of the order.-THE COURT. The order as to the firft exception is well enough; for it has been often and often ruled, that the reputed father ought to pay the extraordinary charges; but as to the fecond, the recognizance ought to be in the disjunctive; for the binding him to perform the order is to exclude him from the benefit of his appeal to the quarter-feffions. The order was therefore quashed as to this part, and confirmed as to the reft. 543. Webb v. Cook, Mich. Term, 19. Jac. 1. Cro. Jac. 535. and 626.-PROHIBITION to stay a fuit in the ecclefiaftical court for defamation, in calling Cook a whoremafter, and faying that he had a baftard; and fhews that the defendant, who fued in the fpiritual court, was fentenced, at the feffions at Norwich, for having this baftard, and ordered to keep it; and therefore, the spiritual court could not examine this again. Upon this fuggeftion, the defendant demurred: and IT WAS ADJUDGED that the prohibition should stand; for, being fentenced to be the reputed father by the juftices at feffions, by authority of the law, it cannot be now impeached in the Ante, p. 40. fpiritual court or elsewhere, and all are concluded to fay the contrary, until it is reverfed. pl. 531. The justices Cannot order the churchwardens to feize fo much of the defen as they shall think proper; or compel the 544. Reg. v. Chaffey, Eafter Term, 2 Ann. Ld. Raym. 858.-Several orders were made by the juftices in Wilts against the defendant, as the putative father of a bastard child. Motion was made to quafh one of them, by which the churchwarden and overfeers are directed to dant's goods feize what they themselves fhould think proper of the defendant's goods, to fecure the parish from the maintenance of the child; becaufe by 13. and 14. Car, 2. putative father C. 12. the juftices have only authority to make an to give fecurity, order enabling the churchwardens, &c. to feize what until he has the juftices fhould think proper, and this order for this omited to pay reafon was quafhed. Then exception was taken to the original order, in which it was ordered that the defendant should give fecurity for payment of the fum by S.C.13. Salk.66. them the juftices impofed for the maintenance of the child, when it did not appear that the defendant had difobeyed the order in point of payment; whereas by the 18. Eliz. c. 3. an order for fecurity cannot be made till after contempt.-And for this reafon the order was qualled as to that part, and was confirmed as to the re the money or. dered. fidue; and, PER CURIAM, When an order is confirmed in this court, an attachment lies for non-performance of it, and therefore this Court will not take fecurity of the party for the performance of it. But if the original order had been at feffions, not removed hither, the Court would have taken fecurity of him to appear there. fufal to enter into recogni cannot, 545. Reg. v. Weft, Eafter Term, 4. Ann. Ld. Raym. The juftices out 1157. The defendant was adjudged by two juftices the of feffions may father of a bastard child, pursuant to the 18. Eliz. c. 3. and imprifon for reordered to pay; and upon appeal the order was confirmed at the feffions, and for not paying the money he was zance, but the committed; and now was brought into court by a writ juftices at fefof babeas corpus.-HOLT, Chief Justice. The feffions fions on appeal proceed by way of appeal in this matter, by the power given them by the 18. Eliz. c. 3.; but by that ftatute S. C. 11. Mod. they have no power to commit for difobedience to their 59. order. That ftatute directs a recognizance to be taken See 2.Bulft. 341. by the two juftices who make the order, which if the party will not enter into, they, the two juftices, may commit him. Indeed, if the feffions proceed originally by 3. Car. 1. c. 4. they may commit for the non-performance of their order. It is immaterial to the prefent point whether the juftices did take a recognizance or hot, because their neglect would not give the feffions a power to commit, which the ftatute does not give them. -The defendant was difcharged. distance of time. 546. Rex v. Miles, Mich. Term, 1. Geo. 1. 1. Seff. The juftices Cafes 77. On motion to quash an order of baftardy, it may make an was refolved, that if the father ran away, and returned, order at any though fourteen years after, yet an order to fix the child on him is good, for there is no statute of limitation in thefe cafes. order unless the 547. Rex v. Butcher, Trinity Term, 7. Geo. Str. 437. The justices An order of baftardy was made in these words: "We cannot make an "A. and B. two juftices of the borough of Lyme Regis, parish where the "refiding within the limits where the parish-church is, child be born "within which parifh the child was born, do, &c." is ftated. And it was quafhed, because there was not an averment Saik. 472. where the child was born; for this is only an averment Bac, K. B. 526. that the juftices refided in that parish where the child was born; but that might not be the fame parifh to which relief was given. 548. Rex v. Chandler, Mich. Term, 11. Geo. 1. Str. 612. The juftices cannot punish a Indictment for fecreting a woman big with an illegiti- perfon for femate child, so that she should not be had to give evidence creting a wo about the father. The defendant demurred: and by the man big with child. REX V. Court: Judgment must be given for the defendant, for the CHANDLER, child cannot be illegitimate before it is born, there being always a poffibility that it may be born in lawful wedlock; and by this ftatute the woman is not to be compelled. After an or der of juftices is difcharged at feffions, the justices cannot make a fresh order upon the fame perfon. 549. Rex v. Tenant, Mich. Term, 13. Geo. 1. Ld. Raym. 1423. Order was made upon the defendant by two juftices to maintain a baftard child, as being the reputed father; which order, after the merits were fully heard at the feffions, was there difcharged; and the defendant was bound to appear at the next quarter-feffions, under an apprehenfion, as it was fuppofed, that better evidence might be found against him. After this, the fame two S. C. Stra. 716. juftices made a new order upon the defendant to keep S.C. 1.Seff.Caf. this baftard child. The laft order of the two juftices was now quafhed by the Court, because they have made an order upon the defendant, which was afterwards regularly difcharged upon appeal upon hearing the merits. 2. Bulft. 355. The defendant was legally acquitted, and cannot be drawn in question again for the fame fact (a). 272. 1. Vent. 59. Cro. Car. 341. 350.471. The juftices cannot order that the puta order. S. C. 2. Seff. car. 348. Vide ante, 550 Rex v. Meffenger, Eafter Term, 8. Geo. 2. MSS. -Mr. Abney moved to quafh an order of baftardy made by two juftices of the liberty of the Tower of London, and confirmed at the feffions held for the liberty, whereby the defendant was adjudged the father, &c. on the 18. Eliz. c. 3. for that it did not appear in the original order, nor that of the feffions, in what county the liberty of the Tower was, that the party might know where to appeal, but it is only in the niarP. 416. pl. 544. gin, " to wit, Liberty of the Tower of London." And "to SECONDLY, for that the juftices in the latter part of the order have ordered the defendant, generally, to give fecurity to perform the faid order, when by 18. Eliz. c. 3. he has his election either to give fecurity, or to enter into a recognizance to appear at the next quarter-feffions, &c-CLARK, in fupport of the order, faid, the liberty of the Tower of London is a diftin& liberty, and in all refpects the fame as to the prefent cafe as a county. It has a feparate commiffion of the peace, officers of its own, and quarter-feffions; and 3. Car. 1. c. 4. referring to 18. Eliz. c. 3. gives juftices of a liberty the fame jurifdiction as juftices of a county, which is ftill plainer from 6. Geo. 2. c. 31. As to the objection, he faid, as touching the fecurity, the defen A (a) See alfo Pridgeon's Cafe, H. Cat. Cro. Car. 353. in which it was determined that the statute 9. 3.Car. 1. c,4. doth not aid in this cafe, nor enable one feffions to alter what was ordered in a former feffions. dant REX . dant had determined his choice by giving fecurity, which was at least an election by implication.-LORD HARD-MESSENGER. WICKE, Chief Juftice. An exprefs appeal is not directed The juftices of by the 18. Eliz. c. 3. but arifes from a conftruction of a liberty need that act; and I do not know whether the want of an not state in an order of filiaaverment in what county the liberty was, be an ex- tion in what ception on that ftatute; however, that is fully cleared up county fuch by 3. Car. 1. c. 4. fo that as to that exception the original liberty is fiturder is good. But the SECOND OBJECTION is fatal; for ated.. by 18. Eliz. c. 3. the putative father has an election. to enter into a recognizance or to give fecurity; and fuch order can be made only on default: therefore, as to that the original order must be quafhed, though confirmed as to the first part on the First Exception; and the order of feffions confirming the original order must be quafhed in toto.-THE COURT agreed, and further said, The reason why the county fhould be in the margin, was to fhew the fact arofe in the county wherein the juftices have jurisdiction, not that the party may know where to appeal.-NOTE, No recognizance was taken of the defen- See Rex. dant to appear at the next general quarter-feffions for the Woodchefter, liberty, &c. the part of the original order as to the fe- ante, p. 402. curity, and the order of the feffions in toto, were quafhed. Pl, 531. And the reafon is, for that the defendant was bound by that part of the order confirmed as to the firft exception, whereby and for the not performing of which he might be committed. feffions cannot puted father 551. Rex v. Jenkin, Trinity, 9. Geo. 2. B. R. H. 301.-The two juf LORD HARDWICKE. An order of baftardy made by tices out of two juftices was removed hither, and is to this effect: make an order "WHEREAS Complaint has been made to us by the over- to acquit or dife "feers of the parish of Christ Church, that M. B. fingle charge the perwoman, was delivered of a baftard child, &c. and hath fon who is "charged Jenkin with being the reputed father thereof, charged with "&c. we therefore, &c. both dwelling next to the faiding the reparish, having taken and confidered the examination, of a baftard "and heard upon oath the proofs alledged before us, do child. "adjudge that he is not the reputed father of, &c. and 2. Stra. 1050. "do acquit him of the fame." The objection is, that 2. Seff. Cafes, thefe juftices have no authority to give a judgment of 229. difcharge; and we are of that opinion. Their whole authority out of feffions in matters of this nature arifes by the 18. Eliz. c. 3. and the power given thereby is not of judicature, but merely to proceed by way of order, as in many other cafes. And therefore the words of the ftatute are, that" they thall take order;" and accordingly it has been treated in this court as an authority to them to make orders, and not as giving them a jurifdiction to E e 2 convict |