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Rixo.

not appear that the defendant had disobeyed the order in CHAFTEY. point of payment; and by 18. Eliz. c. 3. an order for

fecurity cannot be made till after contempt; and for this

reason the order, as to this part of it, was quashed. A bond given 570. Hulland v. Malken and Bristow, Trinity Term, 33. by a sbird person 34. Geo. 2. 2. Will. 126. - Debt upon a bond. Deand to the re- tendants craved over of the condition, which was, that if puted father of they should indemnify the plaintiff, &c. as to a baftard a baltard child, to save him child, then the obligation to be void; otherwise, &c. from all charges and then they plead that the child is an infant in the respecting such arms of its mother, and that while the child and mother child, is for

was with thein (which was four days), they took care feited, if such father be called

of it, and provided for it every thing; but that the moupon hy the

ther hath taken away the child from them, and that the pari'n to main. child hath not fince been delivered to them by plaintiff : tain the child, Et hoc, &c. The plaintiff replies, that it is true that the although it was

child was carried away by the mother, who for some time onder leven years of age,

provided for it ; but for replication fays, that it afterwards and the mother became chargeable to the parish, and that he the plaintiff took it from has been obliged to pay fuch charges to the parish, whereby the care and

he is damniñed: Et hoc, &c. The defendant rejoins, keeping of the that the child was an infant under feven years obligor.

of

age, and in the keeping of the mother, and that it was not in their power to take it from her and keep it, so as to indemnify plaintiff. To this the plaintiff demurred, and thewed for caute, that the rejoinder is argumentative, and neither confetles or avoids, nor traverses or denies, and is also a departure from the plea. The case was this: An Parker having charged the plaintiff with being the fatlier of a bastard child, he was obliged to give bond to indemnify the parish ; but in order to get rid of the child, and to be clear of the parish, he paid the defendants 141. in confideration whereof they entered into the faid bond to indemnify the plaintiff againft all damages, charges, &c. which he might be liable and put to on account of thie faid child. Upon arguing this cafe, THE WHOLE COURT were clearly of opinion, that the plea was bad. They faid, this was a general bond to indemnify the plaintiff as to the child against all the world; and they can plead nothing but one of thefe two things, either that the plaintiff hath not been damnified, or (in excuse) if he has been damınitied, he limitelf was the occasion thereof, neither of which they have done: the mother's taking away the child is no excufe at all. Moreover they faid, the replication had thewn how the plaintiff was damnified; and the rejoinder in effect had adinitted it, because it had not denied it. And they said, We need not in this case fay,

whether real

BASTARDS.

431 whether the father or the mother hath a right to have the HULLAND V. child while under seven years of age, because the de- MALKAN, &c. tendants have bound themselves to keep the plaintiff harmless against all the world. They have confeffed in their plea that they had the child in their keeping, and why did they let the mother carry it away; it was the defendant's own fault, and cannot excuse them to the plaintiff. - Judgment for the plaintiff. - N. B. THE CHIEF JUSTICE said, he would give no opinion whether the father has any power over a child who is nullius filius: Grotius says truly that the mother is the only certain parent; and an order of justices to remove the mother always removes the child.

571. Brangwin v. Perrot, Easter Term, 18. Geo. 3. The whole 2. Bl. Rep. 1190.-Grose moved for leave to pay 401. penalty of a (being the whole penalty of a bond to indemnity'a pa-bastardy bord rifh against a bastard child) into court, with cofts. This may be paid

into court was permitted (even where the penalty was to be relieved against) in the courts of law before the statute of the 4. & 5. Anne. Ireland's Cafe, 6. Mod. 101.-WALKER thewed for cause, that this was an action for a single breach of the bond, on which we are entitled to recover; after which the penalty shall still remain in full force to answer subsequent breaches, as they may arise, in infinitum.Sed non allocatur: and by De Grey, Chief turtice. This is really fo plain a case, that one knows not what to say to make it clearer. The bond afcertains the damage by consent of parties. If therefore the defendant pays the plaintiff the whole stated damages, what can he defire more?-GOULD, BLACKSTONE, and Nares, Juftices, of the same opinion.-Rule absolute.

572. Kirk v. Strickland, Mich. Term, 21. Geo. 3. In debt upon a Douglas, 449.-Motion, by CHAMBRE, for a rule to bond conshew cause, why the defendant 1hould not be discharged ditioned for an upon filing common bail

. The action was debt upon the defendant a bond conditioned for the indemnification of a parith oughe not to be against a bastard child. The penalty in the bond was held to bail for sol. and the plaintiff, in his afidavit for holding the de- the penalty, but fendant to bail, had sworn that he was justly indebted to

only for the him in that fum ; but the defendant, in the affidavit on damage in. which this motion was grounded, swore that only 31. and curred. fome odd shillings were really due. -The Court said, the conduct of the plaintiff was altogether unjustifiable, and that he was liable to an action. That, in the case of a bond conditioned for the performance of a promile of marriage, and in some other instances, the penalty is the

amount of the

Korku. real debt; but, in other cases, the bail could only be STRICKLAND. taken for the fum to which the plaintiff would be en

titled in damages for the breach of the condition. At first, however, they seemed to think they could not relieve the defendant upon this summary application, it having been an uniform rule not to go into the merits upon such a motion, but to take the matter as it stood upon the affidavit to hold to bail; but, at last, they granted the rule, declaring that they were persuaded thie plaintiff would not venture to thew cause against it.

VIII. The form of the order of bastardy.

The order must 573. Anonymous, Hilary, 4. Car. 2. Styles, 368.- PER itate that the CURIAM. It must appear by the order for maintaining child was born

a bastard child, that it was born in that parish to which in the paril,

the Same resolution moncy was ordered to be paid. R.ø. Childers, E. 3. Geo. 2. MSS.

An order of 574. Rex v. Perkasse, Easter, 20. Car. 2. 1. Sid. 363.– maintenance to It was moved to quanh an order of maintenance inade at pay two pence, the festions at Huntingdon. The objection was, that it a week, is bad for the small

was unreasonable in respect of the smallness of the fum, ness of the sum. being only two-pence a week for the maintenance of the

child.—THE COURT were of opinion, that it should be quashed.

An order of 575. Burwell's Case, Mich. Term. 21. Car. 2. 1.Vent. 48. battardy direct. -Upon complaint to two justices about a bastard child, ing the reputed they, by 18. Eliz. c 3. order one Reynolds to keep the tain the child child; but on this order being vacated, another was made until it was at fessions, adjudging Burwell to be the reputed father, twelve years old, and ordering him to pay so much a week to the parish, is bad. until the child was twelve years old. This order was re1. Mod. 20. moved by certiorari into the king's bench; and THE COURT 2. Keb. 575 held it insufficient, because it was, that he should pay the

parish so much a week until the child was twelve years old, whereas the father might take it away when he pleased but it ought to have been, that he should allow so much a

week so long as it should be chargeable to the parish. An order that 576. Rex v. Sherman, Easier, 24. Car. 2. Vent. 210.the reputed sa Order of justices quashed, because the father was directed

to pay four Thillings to the midwife, whereas it did not fo much to be midwife, is bad. appear that the parish had procured her, or were at any charge with respect to her; and because the putative father

was

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was ordered to pay seven shillings á week until the child an order to Thould be able to get its living by working. But the pay Joven fhil. Court held seven thillings a week excessive; and Twis- is excellive, DEN, Justice, observed, that it should have been for no longer time than the child should be chargeable to the parish; for that they could not order the seven thillings a week to be paid until it should be able to get its living, as perhaps the father might chuse to take it away and maintain it himself, which he might do whenever he plealed. The order was accordingly quashed.

577. Rex v. Johnson, Mich. Term, 3. Jac. 2. Comb. 69. An order - An exception was taken to an order for keeping a "till no longer bastard child, because it niade provision for the main-chargeable" is tenance of the child " till it shall be no longer charge

good. “ able, &c.” whereas by the statute it should be “till the “ child 1hall be able to get its own living;” but the order was confirmed.

578. Rex v. Colberi, Easter, 1. Will & Mary, Comb. 103. Order of bar- 1 -An order made by the justices of peace was quashed, tardy cannot

be made on because it was made on an affidavit brought to them, without the examination of witnesses; and SECONDLY,

affidavit only. because the defendant was ordered to pay a sum in gross, for the charges that the parish had been at, &c. without Thewing how or for what.

579. Hatton's Cafe, Hilary Term, 8. Will. 3. 2. Salk.477. Order of baf-To an order made by five justices to maintain a bas- tardy by five tard child it was objected, that the complaint is not said justices for the to have been made by any parish, or officers of any pa- is good.

relief of a lowagi rish, but only of a town, which may include many parishes : SECONDLY, that instead of five justices, the order ihould have been made by the two next: THIRDLY, that it does not appear that either of those was of the quorum. The first and second exceptions were over-ruled, but the order was quashed upon the last (a).

(a) Sed vido

ante, p. I. and 2. in notis. $80. Rex v. Barebaker, Easter Term, 9. Will. 3. 2. Salk. An order till 478.-Order to pay three shillings per week, for the the child attains maintenance of his bastard child "till it attains the age of the age of four“ fourteen years," was held bad; for the justices have teen,” is bad. no authority but to indemnify the parish, by obliging 1. Vent. 210. him to maintain the child “as long as it shall be charge- 1. Mod. 20. able to the parish.”

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Comb. 320,

1. Sid. 222.

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581. Rex v. Wilton, Trinity, 4. Am. Salk. 122.-Dethe reputed fi: fendant being adjudged the father of a bastard, was ordered “}b: cuirfear," to pay so much weekly to the overseers of the poor : and is good.

THE Court refused to qualh the order upon that ex

ception, because as before the inititution of overseers Ld. Ray. 1193. the justices might order the money to be paid to two or

three of the inhabitants, so now they may to the overseers. But the order was quashed, because it was said, “We the said two justices doth adjudge," instead of do

adjudge. An oder may 582. Rex v. IVifion, Trinity Term, 4. Ann. MSS.direct payment Two justices made an order upon one Il'efton, adjudging

particular him to be the reputed father of a bastard child, and orday weekly.

dering him to pay so much weekly for its maintenance, viz. every Monday. It was objected, that they had gone beyond the power given them in the statute ; for computing the time from the making of this order, the week was not up on the Monday. But it was ruled in this cafe, that juftices of the peace may order the payment upon a particular day weekly, even if the first week from

making the order 1hould not be complete on that day. An order of 583. Rex v. Cuddington, Eafier Term, 9. Ann. MSS.baitardy must Two juftices made an order on the reputed father of a

bastard child, that he should pay fo much weekly and in the parish. every week to the overseers of the poor of Cuddington

“ until the said child should be able to gain its liveliS. C. Sett. & Rem. 38.

“ hood.” The order also omitted to state, that this bara tard child was born in the parish. And on its being removed into the king's bench, and exception taken to it

by SERJE ANT DARNEL, it was quashed. An order to 584. Smith's Cafe, Easter, Paor's Sett. 64.–To an order pay "oill. eight to pay one thilling a week“ till the child is eight years years old,' is

"old,” it was objected, that it ought to be “as long as the bad.

“ child is chargeable ;" for poffibly he may gain a settle. . Caf. of S. 64. take hiin. ---Per CURIAM. A remote possibility! As to the Cal. of S. 64."* ment, or a person

may give him an estate, or the father may father's taking him, he ought to have done it at first; and by suffering the order to be made, it shall be deemed a

refufal in law: befide, he shall not be then suffered; he (a) Vide the may fell him, or makc away with him, as too often hapCare of New landv. Osman, ante, page 406, pl. 53?. An order to pay

585. Reg. v. Smith, Hilary Term, 11. Ann. MSS.-Two

justices make an order upon Smith, (as the reputed fabused, with ther of a baitard child) to pay forty shillings for money out laying by whom, is goud. S, C. Sert. & Rem. 40.

disbursed,

pens. (a)

moncy dir

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