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tried the cause, over-ruled the objection, and a verdict Hays v. was found for the plaintiffs.- A rule having been granted BxXANT. to thew cause why the verdict should not be set aside, and a nonfuit entered, BOND, Serjeant, repeated the objection which he made at the trial; and cited the case of Simplon v. Jobnson. -COCKELL, Serjeant, was going to Thew cause; but was stopped by The Court, who held clearly, that an order of justices was not necessary to make the officers of the parish liable to do what they were otherwite under a legal obligation of doing, namely, to provide necessaries for the children ; and therefore difcharged the rule.

IV. The authority of the justices. 541. Smith's Case, Mich. Term, 6. Car. I. 2. Bulft. 342. The two justices

under the -On a return to a habeas corpus it appeared, that two jul

18. Eliz. c. 3. tices, upon examination and proof made before them, had must take a adjudged Smith to be the reputed father of a bastard 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 bastard faid child, and for discharge of the parish ; and that by the order or virtue of a warrant made by one of the said justices Smith to appear as was committed for non-performance of the order.-- the lesions. Jones, Justice. The justices have no power by the 18. Eliz. c. 3. to commit any one for non-perforinance of their order, but the two first and next justices are to take bond or recognizance, which ought to be in the disjunctive, to perform the order by them made, or to appear at the next quarter-seflions, and to abide the order there (a).-But the Court acreed, that when the (a) Vide Eve's

Case, pl. 542. recognizance is properly taken, one justice of the peace

were this is by his warrant may commit.

confirmed 542. Rexv. Eve, Hilary Term, 34 & 35. Car. 2. 2. Show. The justices 256.-Two justices adjudge John Eve to be the reputed may order the father of a baitard child, and ordered the faid John Eve to

reputed father

not only to pay pay weekly from the birth of the saiu child the sum of

a weekly from two shillings and fixpence unto the overseers of the poor for the mainfor its maintenance, unless the said "Yohn Eve shall other- tenance of the wise discharge the said parish of such burthen as may accrue thereunto by reaion of such bastard child: and gross fun for they further order the faid John Eve to pay the sum of dinary expences forty shillings towards the extraordinary charges of the of the mocher's lying-in of the mother: and laitly, that the said delivery. John Eve do immediately put in sufficient surety for the due performance of the order.---Sır Bar. Shower mov

ed

child, but a

the extraor

Rex v. Eve. ed to quash this order: first, because there is a sum

ordered besides the weekly payment: and, secondly, upon (a) Ante, pl. the authority of Smith's case (a), because security is ordered 541.

to be given for performance of the order.—THE COURT. The order as to the first 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 second, the recognizance oughit 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-sessions. The order was therefore quashed as to this part, and confirmed as to the rest.

Salk. 524.

The order of 543. Webb v. Cook, Mich. Term, 19. Jac. 1. Cro. Jac. justices is con

535. and 626.-PROHIBITION to stay a suit in the eccleclufive of the

siastical court for defamation, in calling Cook a whorefact of bastardy until it is re

master, and saying that he had a bastard; and shews that versed. the defendant, who sued in the spiritual court, was sen

tenced, at the sessions at Norwich, for having this barCarth. 516.

tard, and ordered to keep it; and therefore, the spiritual court could not examine this again. Upon this suggestion, the defendant demurred: and IT WAS ADJUDGED that the prohibition should stand; for, being sentenced to be the reputed father by the justices at fefsions, by au

thority of the law, it cannot be now impeached in the Ante, p. 402. fpiritual court or elsewhere, and all are concluded to say pl. 531. the contrary, until it is reversed. The judices

544. Reg. v. Chaffey, Eafter Term, 2 Ann. Ld. Raym. cannot order 858.--Several orders were made by the justices in Wilts the church

against the defendant, as the putative father of a bastard wardens to

child. Motion was made to qualh one of them, by seize so much of the defen.

which the churchwarden and overleers are directed to dant's goods seize what they themselves should think proper of the as they shall

defendant's goods, to secure the parish from the main

tenance of the child; because by 13. and 14. Car, 2. or compel the putative father c. 12. the justices have only authority to make an to give security, order enabling the church wardens, &c. to seize what until he has

the justices should think proper, and this order for this omi.ted to pay reason was quaihed. Then exception was taken to the the money or

original order, in which it was ordered that the defen

dant ihould give security for payment of the sum by S.C.3. Salk.66.

them the justices imposed for the maintenance of the child, when it did not appear that the defendant had disobeyed the order in point of payment; whereas by the 18. Eliz. c. 3. an order for security cannot be made till after contempt.--And for this reason the order was qualled as to that part, and was confirmed as to the re

think proper ;

dered.

Cannot,

Gdue; and; PER CURIAM, When an order is confirmed in

Rex v.

CHAFFEY. this court, an attachiment lies for non-performance of it, and therefore this Court will not take security 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 security of him to appear there.

545. Reg. v. West, Easier Term, 4. Ann. Ld. Raym. The justices out 1157. The defendant was adjudged by two justices the of Seffions may father of a bastard child, pursuant to the 18. Eliz. c. 3. and imprison for reordered to pay; and upon appeal the order was contirm

into recognis ed at the sessions, and for not paying the money he was zance, but the committed ; and now was brought into court by a writ justices at ferof 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. Etiz. c. 3.; but by that itatute S.C. 11. Mod. they have no power to conimit for disobedience to their 59. order. That statute directs a recognizance to be taken See 2.Bulft. 341. by the two justices who make the order, which if the party will not enter into, they, the two justices, may commit him. Indeed, if the sessions proceed originally by 3. Car. 1. C.4. they may commit for the non-perforinance of their order. It is immaterial to the present point whether the justices did take a recognizance or hot, because their neglect would not give the sessions a power to commit, which the statute does not give them. --The defendant was discharged.

546. Rex v. Miles, Mich. Term, 1. Geo. 1. 1. Sell. The justices Cafes 77: On motion to qualh an order of bastardy, it may make an

order at any was resolved, that if the father ran away, and returned, though fourteen years after, yet an order to fix the child distance of time. on him is good, for there is no statute of limitation in these cases.

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

order unless the A. and B. two justices of the borough of Lyme Regis,

paris where the “ residing within the limits where the parish-church is, child be born " within which parish the child was born, do, &c." is ttated. And it was quashed, because there was not an averment Saik. 472. where the child was born ; for this is only an averment Bac. K. B. 926. that the justices resided in that parish where the child was born ; but that might not be the same parish to which relief was given.

548. Rex v. Chandler, Mich. Term, 11. Geo. 1. Str. 612. The juftices Indictment for fecreting a woman big with an illegiti-person for Tee

cannot punitha mate child, so that she should not be had to give evidence Ccrering a wo. about the father. The defendant demurred: and by the man big with Rex v. Court: Judgment must be given for the defendant, for the CHANDLER. child cannot be illegitimate before it is born, there being

$. C. Ld. Ray. 1368. 2. Sell. Caf. 5. 8. Mod. 336. Ee

Courr:

child,

always a possibility that it may be born in lawful wedlock; and by this statute the woman is not to be compelled.

person.

272.

359. 471.

After an or

549. Rex v. Tenant, Mich. Term, 13. Geo. 1. Ld. Raym. der of justices 1423. Order was made upon the defendant by two jusiš discharged tices to maintain a bastard child, as being the reputed faat fefsions,

ther; which order, after the merits were fully heard at the justices cannot make a

the sessions, was there discharged; and the defendant fresh order was bound to appear at the next quarter-feffions, under upon the same an apprehenfion, as it was supposed, that better evidence

might be found against him. After this, the same two S. C. Stra. 716. justices made a new order upon the defendant to keep S.C. 1. Serr.Cal. this bastard child. The last" order of the two justices

was now quashed by the Court, because they have made 1. Vent. 59. Cro. Car. 341.

an order upon the defendant, which was afterwards re

gularly discharged upon appeal upon hearing the merits. z. Bulst. 355. The defeildant was legally acquitted, and cannot be

drawn in question again for the same fact (a). The justices 550 Rox u. Messenger, Faster Term, 8. Geo. 2. MSS. cannot order -Mr. Abney moved to qualh an order of bastardy made that the puta,, by two justices of the liberty of the Tower of London, sive father thall and confirined at the feflions held for the liberty, give security iu perform the whereby the defendant was adjudged the father, &c. on order, the 18. Eliz. C. 3. for that it did not appear in the S.C. 2. Serr. original order, nor that of the sessions, in what county

the liberty of the Touer 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

SECONDLY, for that the justices in the latter part of the order have ordered the defendant, generally, to give security to perform the said order, when by 18. Eliz. c. 3. he has his election either to give security, or to enter into a recognizance to appear at the next quarter-fessions, &c. CLARK, in support of the order, said, the liberty of the Tower of London is a distinct liberty, and in all respects the same as to the present cale as a county. It has a separate commission of the peace, officers of its own, and quarter-fessions; and 3. Car. I. C. 4. referring to 18. Eliz. c. 3. gives justices of a liberty the same jurisdiction as juftices of a county, which is still plainer from 6. Geo. 2. c. 31. As to the objection, he laid, as touching the security, the defen

.348 .گاه)

Yide ante,

(a) See also Pridgeon's Case, H., 3.Car.1,2,4. doth not aid in this case, 9. Cat. Cro, Car. 353. in which nor enable one selfions to alter what it was determined that the statute was ordered in a former feftions.

dant

dant had determined his choice by giving securits, which

REX. was at least an election hy implication.- LORD HARD- MESSENGER. WICKE, Chief Justice. An exprefs appeal is not directed The justices of by the 18. Éliz. c. 3. but arises from a construction of a liberry need that act ; and I do not know whether the want of an not itate in an

order of filiaaverment in what county the liberty was, be an ex. tion in what ception on that statute; however, that is fully cleared up county such by 3. Car. I. C. 4. so that as to that exception the original liberty is fitu. rder 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 security; and such order can be made only on default: therefore, as to that the original order must be quashed, though confirmed as to the first part on the First Exception; and the order of sessions confirming the original order must be quashed in toto.-The Court agreed, and further said, The reason why the county should be in the margin, was to thew the fadt arose in the county wherein the justices 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-sessions for the Woodchefter, liberty, &c. the part of the original order as to the fe- ante, p. 402. curity, and the order of the sessions in toto, were quathed. Pls 531. And the reason is, for that the defendant was bound by that part of the order confirmed as to the first exception, whereby and for the not performing of which he might be cominitted.

sertions cannot

551. Rex v. Jenkin, Trinity, 9. Geo. 2. B. R. H. 301. The two jura LORD HARDWICKE. An order of baftardy made by tices out of two justiccs was removed hither, and is to this effect":

make an order “ WHEREAS complaint has been made to us by the over-to acquit or dirę “ feers of the parish of Christ Church, that M. B. single charge the perwoman, was delivered of a baftard child, &c. and halh son who is "charged Jenkin with being the reputed father thereof, charged with * &c. we therefore, &c. both dwelling next to the laid being the re« parish, having taken and considered the examination, of a battard " and heard upon oath the proofs alledged before us, do child. " adjudge that he is not the reputed father of, &c. and 2. Sera. 10$n. “ do acquit him of the same.” The objection is, that 2. Sell. Cales, these justices have no authority to give a judgment of 229. discharge ; and we are of that opinion. Their whole authority out of sessions in matters of this nature arises 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 cases. And therefore the words of the statute are, that “ they thall take order;" and accordingly it has been treated in this court as an authority to thein to make orders, and not as giving them a jurisdi&tion to Ee 2

conviat

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