REX V. JENKIN. (4) Cro. Car. 476. (b) Cro. Car. 353. (6) 1. Seff.Caf. 272. 2. Stra. 716. Ld. Ray. 1423. Ante, p. 418. pl. 549. convict or acquit the parties; for the orders have been always made in English, and the evidence not required to be fet forth, nor to fet forth that the party was fummoned; but it has been looked upon to be fufficient to fay in the words of the ftatute, "upon examination of the cause and circumftances," and if it had been taken to be a proceeding to convict or acquit, they would all have been neceffary. The queftion then is, What words in this ftatute warrant the juftices in making fuch an order as this, which is neither for the relief of the parish, nor for the punishment of the party, which are the only two forts of orders which the ftatute empowers them to make? If this matter had been examined at the feffions, as it may be originally by virtue of the ftatute of 3. Car. 1. c. 4. f. 16. it was faid, that they might have an order to discharge him, which would be a good order and final; and that therefore, by parity of reafon, the two juftices might do fo; for it was faid, that the words of the ftatute which give the feffions jurifdiction refer to the manner of proceeding by two juftices. It is true, that, in Slater's Cafe (a) and in Pridgeon's Cafe (b), it was held, that neither two juftices, or a fecond feffions, could reverfe an order of difcharge made at the feffions: fo likewife in Tenant's Cafe (c), two juftices made an order to charge the defendant, who appeared and was discharged; and an order made afterwards by two other juftices to charge him was held void and quashed, because he had been abfolutely difcharged at the feffions. But none of thefe cafes come up to this; for in all of them, the order which was taken to be final was made at the feffions, which is the laft refort in all thefe cafes; and therefore it was rightly refolved, that when their opinion was given, it fhould not be drawn over again by the fame court or by two juftices. It would be absurd, that when two juftices have power by law to make original orders, and the feffions have power upon appeal from thofe orders, as well as by original application, that two juftices fhould have a power to alter their orders, when thofe very orders of alteration might be reverfed by the feffions; and it is reasonable that the order of feffions fhould be conclufive. It would be inconvenient alfo to hold, that two juftices may make a final order ; for the ftatute 18. Eliz. c. 3 gives the parifh no appeal, and the appeal for the party accufed arifes only from his being bound over to the feffions; but if the two jufttices might make a final order of discharge, there is no method for the parifh to appeal, but would be concluded for ever, without relief.-THE WHOLE COURT, The order must be quafhed. 552. Rex 66 or next the li order a joint pences of the nor the feffions 552. Rex v. Skinn, Eafter, 15. Geo. 2. MSS. 2.-An or- The juftices, der of baftardy confirmed at the feffions was removed into though not "in the king's bench by certiorari, and the following exceptions & mits" where taken: FIRST, That it does not appear, that the juftices the church of who made the order were justices in or next the limits the parish is in "where the parish-church is," as directed by 18. Eliz. which the child C. 3. SECONDLY, That the maintenance is joint for both was born, may children, 4s. a week from 16th September, during fo long maintenance as the two female baftard children fhall be chargeable; of feveral baswhereas it ought to be so much for each; for if one die, tards, and that yet the defendant would be chargeable with the 4s. a week, the father tha THIRDLY, That 31. is ordered to be paid towards the Pay the exexpences of the parish on account of the said bastard parish, without children, and it does not appear what thofe expences were. ftating what FOURTHLY, To the order of feffions it was objected, that they are; but they award cofts of the appeal to be taxed by the clerk of neither they the peace on pain of contempt of the court, which they can order cofts have no power to do. To thefe objections it was an- to be taxed by fwered, FIRST, That the words of the ftatute, " juftices the clerk of the "in or next the limits," are only directory, and fo were peace. held in Rex v. Rooke (a): fo upon the 13. and 14. Car. 2. (4) Hardres, 29. "juftices of the divifion" have been held only directory: fo upon the 43. Eliz. c. 2. overfeers are to be appointed within one month after Eafter, was held to be only directory in Rex v. Sparrow (b): and in Rex v. Maurice (c), (b) E. Seff. Caf. upon an appointment of overfeers, juftices" in or near 184. "the divifion" was held to be directory: fo in the cafe Ante, p. 17. of the Duke of Beaufort, and on the Gauze Act, the juf- Pl. 33, tices lived fifteen miles diftant, and held, that was only (c) directory. SECONDLY, If either of the children die, he is difcharged; for it is to pay fo long as the two children fhall be chargeable. THIRDLY, They need not enumerate the feveral expences, but fay the expences in general is fufficient. As to the order of feffions, the feffions have no power to make fuch order as they think fit; but however that is, the order of feffions is at prefent immaterial.-THE COURT took time to confider of it; and afterwards gave their opinion, that the order of juftices is good, and alfo the order of feffions, except as to the awarding cofts to be taxed by the clerk of the peace; fo confirmed the order of juftices and of feffions, except as to the cofts, and that they quashed. 553. Rex v, Baker, Mich. Term, 19. Gco. 2. MSS. 2. Thetwo jufts -Exceptions to an order of baftardy. FIRST, It is have no authonot faid to be made by juftices "in or next the limits;" rity to make an but it was answered and agreed, that these words in the act order of bafare only directory. SECONDLY, It is an extraparochial child is born .n place; for it appears that the child was born in the foreign an extra-parof chial place. Ee 3 tardy where the Rxx v. of Rygate. Anfwer. It is alledged to be within the parith; the foreign of Rygate is the parish of Rygate. THIRDLY, It does not adjudge that the child was born (See Rex v. within the parish (a). FOURTHLY, It does not adjudge Childers, and that the child is chargeable to the parish. Answer to the Rex. Willy. Third and Fourth objections. The order is entitled thus ; "The order of us A. B. and C. D. juftices, &c. con"cerning a bastard child born in the foreign of Rygate "in the parish of Rygate, and chargeable thereto, af "which the churchwardens and overfeers of the foreign (6) 1. Vent.87. of Rygate have made complaint (b)." FIFTHLY, It is not faid to be made upon complaint of the churchwardens and overfeers of the poor of the parish, Anfwer. It is not neceifary; which was allowed by the Court.-THE CHIEF JUSTICE. By its being "concerning a bastard "child, &c. of which the churchwardens and overfeers "of the foreign of Rygate have made complaint," it seems to me under the complaint, and not any adjudication, that the child is born in or become chargeable to the parish; and if there is no adjudication that the child was born in the parish, the exception is good. The mentioning the child to be born in the parith is only in the title of the order and complaint of the churchwardens and overfeers; and upon the Second and Third Exceptions therefore the order was quafhed. The First Exception was over-ruled (e) Ante,p.421. in Rex v. Skinn (c). pl.-552 The juftices a perfon for 554. Rex v. Southby, Mich. Term, 15. Geo. 2. MSS. cannot commit. took a bastard child to nurse, and being fummoned by a juftice of peace was required to tell the name of the refusing to dif- father, and to give fecurity; both which he refufed, upon which the justice committed him. On motion for an information against the justice, THE COURT refused to grant it, but faid he had done wrong in committing 4. cover the father of a bastard child. The juftices 555. Rex v. Fox, Mich. Term, 30. Geo. 2. MSS.-A cannot order a motion was made to quash an order of baftardy. It was putative father objected, that the juftices had ordered the putative father to give fecurity to give fecurity to perform their order.-PER CURIAM. It is bad on the 18. Eliz. c. 3.; and the 6. Geo. 2. c. 31, extends only to cafes where women are enceint. to perform their order. The juftices may commit a woman un married at the 556. Rex v. Ellen Taylor, Eafter, 5. Geo. 2. Burr. 1679, She was brought up by babeas corpus from Lancashire, having been committed to the house of correction at Manchefter for difobeying an order of two juftices" ad"judging her child to be a baftard, and ordering her to difobeying their order of maintenance, although he was married at the time the warrant of commitment was made. time the baftard was born, for “ maintain 61. REX v. TAYLOR. "maintain it by paying 8d. a week for fo long time as "the child fhould be chargeable to the parith," there to remain without bail or mainprize, except fhe fhall put in fufficient furety "to perform the faid order, or elfe, &c." or be otherwife difcharged by due courfe of law. She was unmarried when the child was born, but was now married to Taylor.-LORD MANSFIELD. A feme-covert See Dr. Fofter's is liable to be profecuted for crimes committed by her. Cafe, 1. Co. This woman has difobeyed the order of the juftices, and the 18. Eliz. c. 3. prefcribes the punishment here inflicted upon her. There is no need to fummon the hufband in a criminal profecution againft the wife. SECONDLY, This is within the 6. Geo 1. c. 19. f. 2. She is committed for an offence, and for want of fureties. It is therefore within the provifion of that act, and a legal commitment; and it is better for her than a commitment to the common gaol.-WILMOT, Justice, had no doubt about it. The ftatute of 18. of Eliz. c. 3. exprefsly confiders the producing baftards as an offence; not only the getting or bearing the child, but the leaving it to be a burthen on the parish, and defrauding the relief of the true poor of it. Therefore the juftices may order a proper punishment, and alfo take order for the maintaining the child in relief of the parish; they may do either or both. Matrimony does not discharge the crime: fhe is still the object of the law as to criminal jurifdiction. Such was the cafe of the woman felling (a) gin. There (a) 2. Stra. was no need to fummon the hufband. The hufband is 1120. not liable for the criminal conduct of his wife. SECONDLY, And if it be a crime, fhe is a criminal offender Two juftices within the ftatute 6. Geo. 1. c. 19. and may be committed to either prifon, as the juftices think proper. And the mother of it is for the cafe, benefit, and advantage of the party com- either to the mitted to fend her to the house of correction rather than common gaol or to the common gaol. The order mentioned by MR. to the boufe of FOLEY was made upon a feme-covert "to keep the grand-correction, for "child," but fuch orders made upon parents and order of main children" reciprocally to maintain each other" are not tenance. upon the foot of criminality, but to give a moral obligation a legal efficacy,. As to the conclufion of the commitment, the words of the act are purfued. The addition of," and until difcharged by due courfe of law," is only nimia cautela, and non nocet; it cannot vitiate the former part of the order.-YATES, Juftice, concurred. FIRST, All offences are perfonal, and no change of the offender's circumftances can difcharge her. The hufband was no object of this law, therefore there was no need to fummon him. SECONDLY, It is good within may commit a bastard child difobeying an 424 REX V. The juftices to commit a for he is not fuch commit ment by the Mutiny A. BASTARDS. the 6, Geo. I. c. 19. though it had been bad under 18. Eliz. c. 3.-MR. JUSTICE ASTON Concurred likewife-PER CURIAM unanimously, Remanded. 557. Rex v. Archer, Hilary Term, 28. Geo, 3. 2. Term have authority Rep. 270,-The court of quarter-feffions in Worcestershire, foldier for dif- in April 1786, having adjudged the defendant, a foldier obeying an or- in the first regiment of guards, and in actual fervice, to der of baftardy; be the reputed father of a female baftard child begotten. on Martha Kent of the parish of Upton upon Severn, orprotected against dered him to pay 1s. 6d. weekly to the churchwardens or overfeers of Upton, for fo long a time as the child fhould be chargeable to Upton upon Severn. At the next feffions held in July 1786, the defendant was committed to the bridewell for difobeying the order, till he should find fufficient fureties for the performance of it. A rule had been obtained laft Term to fhew caufe why the order of feffions, by which the defendant was committed to cuftody for difobeying the order of baftardy, fhould not be fet afide, becaufe the defendant, being a foldier in actual fervice, was protected from being arrefted for that caufe under the mutiny act. By the 63d fection of that ftatute, to prevent, as far as may be, any unjust or fraudulent arrefts that may be made upon foldiers, whereby his Majefty and the public may be deprived of their fervice, it is enacted, "that no perfon whatsoever who is "or fhall be lifted, or who fhall lift and enter himself as "a volunteer in his Majefty's fervice as a foldier, shall "be liable to be taken out of his Majefty's fervice by any process or execution whatfoever, other than for ""fome criminal matter, unless for a real debt, or other "just cause of action; and unless before the taking out "of fuch procefs or execution, not being for a criminal 66 " matter, the plaintiff or plaintiffs therein, or fome "other perfon or perfons, on his or their behalf, thall "make affidavit, that to his or their knowledge the original fum juftly due and owing to the plaintiff or plaintiffs, from the defendant or defendants, in the ac"tion or caufe of action on which fuch process fhall "iffue, or the original debt for which fuch execution **fhall be fued out, amounts to the value of 201. at the "leaft, over and above all cofts of fuit in the fame action, for in any other action on which the fame fhall be "grounded; and if any perfon fhall nevertheless be ar"refted, contrary to the intent of this act, it fhall and may be lawful for one or more judge or judges of fuch "court, upon complaint thereof made, to difcharge fuch foldier fo arrefted contrary to the intent of this act." -ASH |