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Rex v. ARCHER,
ASHHURST, Justice. It appears to me that the present case does not come within the provisions of the mutiny act. The first part of the sixty-third section was intended to apply merely to the cases of civil actions: for it begins with Itating, that “ to prevent any anjust $or fraudulent arrests,” &c. ; that was the mischief intended to be guarded against : then it provides, that no person who shall enlift, &c. shall be liable to be taken out of his Majesty's service by any process or execution whatever, other than for some criminal matter, or for a real debt amounting to 20l. It appears from this part of the act of parliament, that the legislature had only in view the preventing of arrests in civil actions, and it has po relation to crimes or any thing of a criminal nature: so that the case of a soldier who is taken up for disobeying an order of justices does not come within this part of the statute. But I have no difficulty in saying, if it were necessary to have recourse to it, that this caule of commitment is of a criminal nature. The disobedience of an order of justices is so far criminal, that in almost every instance the party disobeying may be indicted for it; this Thews it to be a crime. Therefore I am of opinion, that the court of sessions have adjudged rightly, and that we cannot release the defendant from his commitment under the mutiny act.-Grose, Juftice. This is so clear a case, that I think it unnecessary to add any thing to what has been already faid.-Rule difcharged
nation of one
V. The complaint and examination. 558. Rex v. Beard, Hilary Term, 8. Will. 3. 2. Salk.478. An order of -An ordeş made by two justices of the peace in Suffix, bastardy made adjudging Beard to be the father of a bastard child,
on tbe examiwhich was quashed, because it appeared thereby that the justice only, is examination of the woman was by one justice only, bad. though the ordering part thereof was said to be made by both; and Beard was bound over to the next sessions.
559. Rex v. Weft. Trinity, 3. Ann. 6. Mod. 180.-An The examinaorder of two juftices, reciting, that upon examination tion must be in upon oath before one of them of the mother of a bastard
ebe presence of
both juttices. child, it did appear that A. was the father, therefore they adjudge him to be so, and order him to pay, &c.--. Per CÚRIAM. The examination is a judicial act, and ought to be by both : if indeed they be both present, and one only of them çxamines, it is sufficient.
The complaint 560. Rex v. Buckall, Mich. 3. GC0.2. 1. Bar. K. B. 261.
It was objected, that the order did not appear to be made parith, on coinplaint of the parish. The Court said, that the
18. Eliz. c. 3. on which statute this order is founded,
Bot a com
561. Rixv. Nottingham, Easter Term, 10. Gro. 2. MISS. plaint must be -An order of baftardv must be made on complaint of made.
the parish where the child is born, and it must be stated
562. Billings v. Prinn and Another, Trinty Term, 15. mult be present Geo. 3. 2. Bl. Rep. 10.7.-Trespass and falle imprisonat the same time ment for committing the plaintiff to bridewell for refusing and place when
to filiate a battard child. She was examined severally, at
verdi&t for the plaintiff with sl. damages.-GROSE
has ever been the doctrine with refpect to justices of the (a) Plowd.293. peace (a). -De Grey, Chief /:/tice. This case is unfor
tunately too clear to bear an argument. There is no use the very fubje&. in appointing two or more perfons to exercise judicial
powers, unless they are to act together (b). Separate exaAndrews, '238. minations by different magiftrates may produce different Salk. 73. 563. facts : on which then is the adjudication to proceed? It Burr. Sett. Caf. is exceedingly clear, that in case of an a&tion thus brought
to try the validity of the commitment, it cannot be fup(b) See Rex v. Forrest, ante,
ported by law.--GOULD, BLACKSTONË, and NARES, p. 13. pl. 28. Juftices, of the same opinion.-Rule discharged.
Dalton, c. 6. on
6. Mod. 18o.
563. Rex v. Inhabitants of Upton Gray, Trinity Term, It is not ne23. Geo. 3. Cald. 308.-Two justices adjudge Walter Na- ceffary to the tion of the parish of Froyle in the county of Southampton, order of filiaservant, to be the reputed father “ of a female bastard tion that the * child begotten on Sarah Arundell, and that the said putative father "child was chargeable to the parish of Upton Gray in should be pre
sent at the esan " the said county; and that he should pay, &c. and
mination of the “ also one filling weekly, &c.” The sessions on ap- woman helore peal quashed this order, and stated as follows: Upon the two judicek hearing the order (as above stated) read, and what was alledged by counsel thereupon, and it not appearing upon the face of the order that the said Sarah Arundell was examined in the prefence of the said Walter Nation at the time of making the said order, this court is of opinion, and doth adjudge, that the said recited order ought to be quashed; and the same is hereby quashed accordingly.“ MINGAY shewed cause in support of the order of feffions; and admitted, that he could not, upon any general principle or authority, maintain, that it was necessary to the validity of an order of filiation, that the examination of the woman must be had in the presence of the putative father. But he contended, that the reason given by the feflions, however erroneous, would at moft be considered as surplufage: that all courts, having jurisdi&tion over the subječt upon which they had pronounced, were intitled to every intendment in their favour; and that there might have been other reasons.LORD MANSFIELD. They give none. The presence of the putative father is not necessary before the justices out of the sessions; and as the sessions have stated this and no other to have been the foundation of their proceeding, we cannot presume that they went upon any other.-Willes and Buller, fuftices, concurred: Lord Conmisioner ASHHURST was ablent. -- Rule absolute, order of feflions quashed, and original order affirmed.
VI. The summons and commitment. $64. Rex v. Hawkins, Trinity, 7. Geo. 1. Poor Sett. 127. An order of In the order of baftardy it was not said that the defen- battardy neca dant was fummoned, or had notice, or was heard. - Per not state that CURIAM.' It is not requisite where the order is made fummoned. by two juftices; otherwise, if it had been originally made at sessions,
An order of 565. Rex v. Glegg, Mich. Term, 7. Geo. I. 8. Mod. 3.
. bastardy, whe- _ The defendant Glegg was by the order of two juftices ther made by two justices or
of peace adjudged to be the putative father of three bastard at the selfions, children, and ordered to pay, &c. which order was conought to ftate firmed on appeal to the selfions; and both the said orders that the reputed being removed into the King's Bench by certiorari, it was father was fun infifted in Glegg's behalf, that the order made by the two the cause of the justices was irregular, because it did not set forth that fummons; and Glegg was duly summoned to appear before them ; it only not merely fee set forth that he had notice to appear, but did not thew for forth that he had what cause, and therefore was not a regular summons, notice to appear. Sed vide s. c.
-THE COURT was of opinion, that it Glesz was not poft. fummoned to appear, fhewing for what cause, they might
quath this order; for it is against the law of England
justices who made the order, The justices
566. Rex v. Buchall, Mich. Term, 3. G'0. 2. 1. Bar. cannot commie K. B. 261.-This was an order of bailardy made by two onul default be justices confirmed by an order offeflions.--Mr. STRANGE made.
objected, that it was appointed that an attachment should Id. Ray. 358. go against the defendant for having disobeyed a former
order, and he submitted that the court of festions have na
567. Rex v. Cotton, Trinity Term, 6. & 7. Geo. 2.
ing him to appear before them to make his defence, be made ; for without fum- upon appeal to the sessions he was acquitted, and put to mons there can great expences ; which it was infifted was contrary to be no legal cxa-giatural justice.—MR. JUSTICE PAGE. No man in an mination.
office can be supposed to be so ignorant as not to know it is against natural justice to convi&t a man without a summons: the examination ought to be so made that the truth may appear; and this must be by examining both sides, otherwise it is partial. The scandal, the expence, and the disorder in Mr. Fitzgerald's family, are things that ought to be considered : here was no taking by warrant, and therefore an action of false imprisonment would not lie ; and this is the only method can be used to punish the justice.-Mr. Justice PRobyn. The principal objection about a summons is right in law and in reason: poffibly an action on the case might be framed; there may poilibly have been only an error in judgment, and it is hard to grant an information.-MR. Justice LEE. If this was Itri&tly a conviction, against which no appeal lies, an information ought to be granted; but the matter is not so very strong in the case of orders. -And the rule was discharged.
568. Rex v. Neal and Another, Easter Tirm, 8. Gco. 2. But the fumwand MSS.--Motion in the king's bench for an informa- may be by a tion against the defendants, two justices of Devonshire,
ebird juftice. for making an order on one Nicholas Mould, adjudging him to be the putative father of a baftard child without summoning him, and also for refusing to hear his witnesses. On Thewing cause, it appeared that he was sum- S.C. Annalley's moned by a third justice, which the Court held to be Rep. 112. sufficient.-LORD HARDWICKE, Chief Justice. If the party, being fummoned, will not attend himself, there is no reason the justices Thould hear any defence made for him ; for if that were allowed, no offender of this sort would appear: therefore the justices in this case acted right. And it is but as this Court does, when orders of bastardy are removed hither by certiorari: for we never allow any exceptions to be taken to the order, unless the party attend in person (a), that the Court may take care (.) Sed vide of him, and make him indemnify the parish if the order ante, Rex v. is good.
VII. The bond of indemnity and security.
569. Reg. v. Chaffey, Easter Term, 2. Ann. Ld. Ray. 858. The jofices - An order was made by two justices of Wiles against cannot compel the defendant for being the putative father of a bastard the putative child. An objeétion was taken, that it ordered the dc- father to give
security until fendant to give security for payment of the sum by them he has made imposed for the maintenance of the child, when it did default.