ASHHURST, Juftice. It appears to me that the prefent cafe does not come within the provifions of the mutiny act. The first part of the fixty-third fection was intended to apply merely to the cafes of civil actions: for it begins with ftating, that " to prevent any unjust "or fraudulent arrefts," &c.; that was the mischief intended to be guarded against : then it provides, that no perfon who fhall enlift, &c. fhall be liable to be taken out of his Majesty's fervice by any procefs or execution whatever, other than for fome 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 arrefts in civil actions, and it has no relation to crimes or any thing of a criminal nature: fo that the case of a foldier who is taken up for difobeying an order of juftices does not come within this part of the ftatute. But I have no difficulty in faying, if it were neceffary to have recourfe to it, that this caule of commitment is of a criminal nature. The disobedience of an order of juftices is fo far criminal, that in almoft every inftance the party disobeying may be indicted for it; this fhews it to be a crime. Therefore I am of opinion, that the court of feffions have adjudged rightly, and that we cannot release the defendant from his commitment under the mutiny act.-GROSE, Juftice. This is fo clear a cafe, that I think it unneceffary to add any thing to what has been already faid.-Rule difcharged,

V. The complaint and examination.

REX v. ARCHER.

on the exami

558. Rex v. Beard, Hilary Term, 8. Will. 3. 2. Salk. 478. An order of -An order made by two juftices of the peace in Suffex, baftardy made adjudging Beard to be the father of a baftard child, nation of one which was quafhed, because it appeared thereby that the juftice only, is examination of the woman was by one juftice only, bad. though the ordering part thereof was faid to be made by both; and Beard was bound over to the next feffions.

both justices.

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 the prefence of child, it did appear that A. was the father, therefore they adjudge him to be fo, and order him to pay, &c.—PER CURIAM. The examination is a judicial act, and ought to be by both: if indeed they be both prefent, and one only of them examines, it is fufficient.

560. Rex

The complaint may be made by others as well as the parish.

But a com

made.

560. Rex v. Buckall, Mich. 3. Gec. 2. 1. Bar. K. B. 261. -This was an order of baftardy made by two juftices. It was objected, that the order did not appear to be made on complaint of the parish. THE COURT faid, that the 18. Eliz. c. 3. on which ftatute this order is founded, does not require that the parish fhould complain, but gives the juftices power to make fuch order on complaint of any other. The order was confirmed.

561. Rex v. Nottingham, Eafter Term, 10. Geo. 2. MSS. plaint must be An order of baftardy muft be made on complaint of the parish where the child is born, and it must be ftated in the order to have been made on fuch complaint.

Both justices

a woman is

not filiating a bastard child.

562. Billings v. Prinn and Another, Trinity Term, 15. must be prefent Geo. 3. 2. Bl. Rep. 10.7.-Trefpafs and falle imprifonat the fame time ment for committing the plaintiff to bridewell for refufing and place when to filiate a baftard child. She was examined feverally, at examined and feparate times (but in the fame day), and in feparate committed for places, by the two defendants, who were juftices of the peace for Gloucestershire; and they feparately figned the warrant of commitment. On trial at the laft aflizes, verdict for the plaintiff with 51. damages.-GROSE moved for a new trial, alledging that it was fufficient under the ftatute of 7. Jac 1. if the two juftices joined in and confented to the commitment, but that they might examine and adjudge the matter, and fign the warrant, feparately.-WALKER, contra. Where two or more are required to do any act, they must meet together; for otherwife what they refolve on is the mind of individuals, not of the affembly: a dean and chapter must give their voices collegialiter, not feparatim. Affent may be by individuals, Confent by the body. In powers delegated to two juftices, facts must be fettled by one united examination, law muft refult from one united deliberation. This has ever been the doctrine with refpect to juftices of the (a) Plowd.293. peace (a).-DE GREY, Chief Justice. This cafe is unforDalton, c. 6. on tunately too clear to bear an argument. There is no ufe the very fubject. in appointing two or more perfons to exercife judicial 5. Mod. 322. powers, unless they are to act together (4). Separate exaAndrews, 236. 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 cafe of an action thus brought to try the validity of the commitment, it cannot be fupported by law.-GOULD, BLACKSTONE, and NARES, p. 11. pl. 28. Juftices, of the fame opinion.-Rule difcharged.

6. Mod. 180.

137.

(b) See Rex v. Forrent, ante,

564. Rix

validity of an

fent at the exá

563. Rex v. Inhabitants of Upton Gray, Trinity Term, It is not ne23. Geo. 3. Cald. 308.-Two juftices adjudge Walter Na- ceffary to the tion of the parish of Froyle in the county of Southampton, order of filiafervant, to be the reputed father" of a female baftard tion that the "child begotten on Sarah Arundell, and that the faid putative father "child was chargeable to the parish of Upton Gray in thould be pre"the faid county; and that he fhould pay, &c. and mination of the "alfo one fhilling weekly, &c." The feffions on ap- woman before peal quafhed this order, and ftated as follows: Upon the two juftices. hearing the order (as above stated) read, and what was alledged by counfel thereupon, and it not appearing upon the face of the order that the faid Sarah Arundell was examined in the prefence of the faid Walter Nation at the time of making the faid order, this court is of opinion, and doth adjudge, that the faid recited order ought to be quafhed; and the fame is hereby quafhed accordingly.MINGAY fhewed caufe in fupport of the order of feffions; and admitted, that he could not, upon any general principle or authority, maintain, that it was neceffary 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 feffions, however erroneous, would at most be confidered as furplufage: that all courts, having jurifdiction over the fubject 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 prefence of the putative father is not neceffary before the juftices out of the feffions; and as the feffions have stated this and no other to have been the foundation of their proceeding, we cannot prefume that they went upon any other.-WILLES and BULLER, fuftices, concurred: Lord Commiffioner ASHHURST was abfent. Rule abfolute, order of feffions quashed, and original order affirmed.

VI. The fummons and commitment.

not ftate that the party was fummoned.

564. Rex v. Hawkins, Trinity, 7. Geo. 1. Poor Sett. 127. An order of In the order of baftardy it was not faid that the defen- baftardy need dant was fummoned, or had notice, or was heard.-PER CURIAM. It is not requifite where the order is made by two juftices; otherwife, if it had been originally made at feffions,

$65. Rew

An order of

ther made by

med, and thew

Sed vide S. C.

565. Rex v. Glegg, Mich. Term, 7. Geo. 1. 8. Mod. 3. baftardy, whe--The defendant Glegg was by the order of two juftices of peace adjudged to be the putative father of three baftard two juftices or at the feffions, children, and ordered to pay, &c. which order was conought to ftate firmed on appeal to the feffions; and both the said orders that the reputed being removed into the King's Bench by certiorari, it was father was fum infifted in Glegg's behalf, that the order made by the two the cause of the juftices was irregular, becaufe it did not fet forth that fummons; and Glegg was duly fummoned to appear before them; it only not merely fet fet forth that he had notice to appear, but did not fhew for forth that he had what caufe, and therefore was not a regular fummons. notice to appear. THE COURT was of opinion, that if Glegg was not fummoned to appear, fhewing for what caufe, they might quafh this order; for it is against the law of England that a man fhould be impeached without notice to make his defence, and all inferior jurifdictions ought to fhew that they have proceeded according to that power which they have by law. It is admitted, that the juftices of peace have an original jurifdiction in cafes of baftardy, and that their orders, if regular, fhall be conclufive; but if irregular, as this is, they fhall be quafhed.-THE COURT ordered, that the parifh fhould have time to fhew whether Glegg was regularly fummoned to appear before the two juftices who made the order,

poft.

The juftices

made.

Ld. Ray. 858.

566. Rex v. Buchall, Mich. Term, 3. Geo. 2. 1. Bar. cannot commit K. B. 261.—This was an order of baitardy made by two until default be juftices confirmed by an order of feflions.-Mr. STRANGE objected, that it was appointed that an attachment, fhould go against the defendant for having difobeyed a former order, and he fubmitted that the court of feffions have no authority to iffue fuch procefs-Mr. YEATES, on the other fide, obferved, that although the word "attachias" was in the order, it was to be understood no more than a common capias; but admitting that it was, it is laid down in Hawkins's Pleas of the Crown, that every court of record may grant an attachment.-THE COURT, how, ever, thought this was a good objection to the order; and it was accordingly quashed,

The reputed

father muft be

of filiation can

567. Rex v. Cotton, Trinity Term, 6. & 7. Gea. 2. 1. Seff. Cafes, 179.-An information was moved for fummoned be against the defendant, who, with another justice, made an fore an order order of bastardy upon one Fitzgerald, without fummonbe made; for ing him to appear before them to make his defence. without fum- Upon appeal to the feffions he was acquitted, and put to mons there can great expences; which it was infifted was contrary to be no legal ca-natural juftice.-MR. JUSTICE PACE. No man in an

mination.

office

office can be fuppofed to be fo ignorant as not to know it is against natural juftice to convict a man without a fummons the examination ought to be fo made that the truth may appear; and this must be by examining both fides, otherwife it is partial. The fcandal, the expence, and the diforder in Mr. Fitzgerald's family, are things that ought to be confidered: here was no taking by warrant, and therefore an action of falfe imprifonment would not lie; and this is the only method can be used to punish the juftice.-MR. JUSTICE PROBYN. The principal objection about a fummons is right in law and in reafon: poffibly an action on the cafe might be framed; there may poffibly have been only an error in judgment, and it is hard to grant an information.-MR. JUSTICE LEE. If this was ftrictly a conviction, against which no appeal lies, an information ought to be granted; but the matter is not fo very strong in the cafe of orders. -And the rule was discharged.

REY V. COTTON.

568. Rex v. Neal and Another, Eafter Term, 8. Gco. 2. But the fummons MSS.-Motion in the king's bench for an informa- may be by a third juftice. tion against the defendants, two juftices of Devonshire, for making an order on one Nicholas Mould, adjudging him to be the putative father of a baftard child without fummoning him, and alfo for refufing to hear his witneffes. On fhewing caufe, it appeared that he was fum- S.C. Annalley's moned by a third juftice, which THE COURT held to be Rep. 112. fufficient.-LORD HARDWICKE, Chief Juftice. If the party, being fummoned, will not attend himfelf, there is no reafon the juftices fhould hear any defence made for him; for if that were allowed, no offender of this fort would appear: therefore the juftices in this cafe acted right. And it is but as this Court does, when orders of baftardy are removed hither by certiorari: for we never allow any exceptions to be taken to the order, unless the party attend in perfon (a), that the Court may take care (d) Sed vide of him, and make him indemnify the parish if the order ante, Rex v. is good.

VII. The bond of indemnity and fecurity.

Upton Gray,
P. 427. pl. 564.

569. Reg. v. Chaffey, Eafter Term, 2. Ann. Ld. Ray. 858. The juftices -An order was made by two juftices of Wilts against cannot compel the defendant for being the putative father of a baftard the putative child. An objection was taken, that it ordered the de- father to give fecurity until fendant to give fecurity for payment of the fum by them he has made imposed for the maintenance of the child, when it did default.

Salk,