REX v. not appear that the defendant had difobeyed the order in CHAFFEY point of payment; and by 18. Eliz. c. 3. an order for fecurity cannot be made till after contempt; and for this reafon the order, as to this part of it, was quafhed. A bond given a battard child, under feven took it from the care and keeping of the obligor. 570. Hulland v. Malken and Briftow, Trinity Term, 33. by a third perfon 34. Geo. 2. 2. Wilf. 126.Debt upon a bond. Deand to the re- tendants craved over of the condition, which was, that if puted father of they fhould indemnify the plaintiff, &c. as to a baftard to fave him child, then the obligation to be void; otherwife, &c. from all charges and then they plead that the child is an infant in the refpecting fuch arms of its mother, and that while the child and mother child, is forwas with them (which was four days), they took care feited, if fuch father be called of it, and provided for it every thing; but that the moupon by the ther hath taken away the child from them, and that the parih to main child hath not fince been delivered to them by plaintiff : tain the child, Et hac, &c. The plaintiff replies, that it is true that the although it was child was carried away by the mother, who for fome time 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 has been obliged to pay fuch charges to the parish, whereby he is damnified: Et hoc, &c. The defendant rejoins, that the child was an infant under feven years 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, fo as to indemnify plaintiff. To this the plaintiff demurred, and fhewed for caufe, that the rejoinder is argumentative, and neither confeiles or avoids, nor traverfes or denies, and is alfo a departure from the plea. The cafe was this: Ann Parker having charged the plaintiff with being the fatlier of a baftard 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 the 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 excufe) if he has been daninified, he himfelf was the occafion 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 fhewn how the plaintiff was damnified; and the rejoinder in effect had adinitted it, because it had not denied it. And they faid, We need not in this cafe fay, whether whether the father or the mother hath a right to have the HULLAND. child while under feven years of age, because the de- MALKAN, &C. fendants 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 excufe them to the plaintiff.-Judgment for the plaintiff.-N. B. THE CHIEF JUSTICE faid, he would give no opinion whether the father has any power over a child who is nullius filius: Grotius fays truly that the mother is the only certain parent; and an order of juftices to remove the mother always removes the child. into court. 571. Brangwin v. Perrot, Eafter 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 indemnify a pa- bastardy bond rifh against a baftard child) into court, with cofts. This may be paid was permitted (even where the penalty was to be relieved againft) in the courts of law before the ftatute of the 4. & 5. Anne. Ireland's Cafe, 6. Mod. 101.-WALKER thewed for caufe, that this was an action for a fingle breach of the bond, on which we are entitled to recover; after which the penalty fhall ftill remain in full force to anfwer fubfequent breaches, as they may arife, in infinitum. Sed non allocatur: and by DE GREY, Chief Juftice. This is really fo plain a cafe, that one knows not what to fay to make it clearer. The bond afcertains the damage by confent of parties. If therefore the defendant pays the plaintiff the whole ftated damages, what can he defire more?-GOULD, BLACKSTONE, and NARES, Juftices, of the fame opinion.-Rule abfolute. ditioned for an only for the 572. Kirk v. Strickland, Mich. Term, 21. Geo. 3. In debt upon a Douglas, 449.-Motion, by CHAMBRE, for a rule to bond confhew caufe, why the defendant fhould not be difcharged indemnification, upon filing common bail. The action was debt upon the defendant a bond conditioned for the indemnification of a parish ought not to be against a bastard child. The penalty in the bond was held to bail for 50l. and the plaintiff, in his affidavit for holding the de- the penalty, but fendant to bail, had fworn that he was justly indebted to amount of the him in that fum; but the defendant, in the affidavit of damage inwhich this motion was grounded, fwore that only 31. and curred. fome odd fhillings were really due. -THE COURT faid, the conduct of the plaintiff was altogether unjustifiable, and that he was liable to an action. That, in the cafe of a bond conditioned for the performance of a promife of marriage, and in fome other inftances, the penalty is the real KIRK V. real debt; but, in other cafes, the bail could only be STRICKLAND. taken for the fum to which the plaintiff would be en The order muft itate that the titled in damages for the breach of the condition. At firft, however, they feemed to think they could not relieve the defendant upon this fummary application, it having been an uniform rule not to go into the merits upon fuch a motion, but to take the matter as it stood upon the affidavit to hold to bail; but, at laft, they granted the rule, declaring that they were perfuaded the plaintiff would not venture to fhew caufe againft it. VIII. The form of the order of baftardy. 573. Anonymous, Hilary, 4. Car. 2. Styles, 368-PER CURIAM. It muft appear by the order for maintaining a baftard child, that it was born in that parish to which Same refolution money was ordered to be paid. child was born in the parish. the R. v. Childers, E. 3. Geo. 2. MSS. An order of a week, is bad for the fmall 574. Rex v. Perkaffe, Eafter, 20. Car. 2. 1. Sid. 363.maintenance to It was moved to quaíh an order of maintenance made at pay two-pence the feffions at Huntingdon. The objection was, that it was unreasonable in refpect of the fmallness of the fum, nefs of the fum. 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 father to main until it was is bad. 575. Burwell's Cafe, Mich. Term. 21. Car. 2. 1. Vent. 48. baftardy direct-Upon complaint to two juftices 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 at feffions, adjudging Burwell to be the reputed father, swelve years old, and ordering him to pay fo much a week to the parith, until the child was twelve years old. This order was removed by certiorari into the king's bench; and THE COURT 2. Keb. 575 held it infufficient, because it was, that he fhould pay the parish fo 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 fo much a week so long as it should be chargeable to the parish. 1. Mod. 20. An order that ther fhall pay 576. Rex v. Sherman, Eafter, 24. Car. 2. Vent. 210.the reputed fa Order of juftices quafhed, because the father was directed to pay four fhillings to the midwife, whereas it did not midwife, is bad. appear that the parish had procured her, or were at any charge with refpect to her; and because the putative father fo much to the was is exceffive. was ordered to pay feven fhillings a week until the child An order to Thould be able to get its living by working. But THE Pay "feven filCOURT held feven fhillings a week exceffive; and Twis-ings a week" DEN, Justice, obferved, that it should have been for no longer time than the child fhould be chargeable to the parish; for that they could not order the feven fhillings a week to be paid until it should be able to get its living, as perhaps the father might chufe to take it away and maintain it himfelf, which he might do whenever he pleafed. The order was accordingly quashed. good. 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 longerbaftard child, becaufe it made provifion for the main-chargeable" is tenance of the child "till it shall be no longer charge"able, &c." whereas by the ftatute it should be " till the "child fhall be able to get its own living;" but the order was confirmed. affidavit only. 578. Rex v. Colbert, Eafter, 1. Will & Mary, Comb. 103. Order of baf-An order made by the juftices of peace was quafhed, tardy cannot because it was made on an affidavit brought to them, be made on without the examination of witneffes; and SECONDLY, because the defendant was ordered to pay a fum in grofs, for the charges that the parish had been at, &c. without fhewing how or for what. relief of a town, 579. Hatton's Cafe, Hilary Term, 8. Will. 3. 2. Salk.477. Order of bafTo an order made by five juftices to maintain a baf- tardy by five tard child it was objected, that the complaint is not faid juices for the to have been made by any parifh, or officers of any pa- is good. rish, but only of a town, which may include many parifhes: SECONDLY, that instead of five justices, the order thould have been made by the two next: THIRDLY, that it does not appear that either of those was of the quorum. The first and fecond exceptions were over-ruled, but the order was quashed upon the last (a). (a) Sed vide ante, p. 1. and 2. in notis. teen," is bad. 580. Rex v. Barebaker, Easter Term, 9. Will. 3. 2. Salk. An order ❝ till 478.-Order to pay three fhillings per week, for the the child attains maintenance of his bastard child "till it attains the age of the age of fourfourteen years," was held bad; for the juftices have no authority but to indemnify the parish, by obliging 1. Vent. 210. him to maintain the child "as long as it shall be chargeable to the parish.' 1. Mod. 20. Comb. 320, 1. Sid. 222. ther shall pay to "the overfeers' is good. to pay An order that 581. Rex v. Wefton, Trinity, 4. Ann. Salk. 122.-Dethe reputed fa- fendant being adjudged the father of a baftard, was ordered fo much weekly to the overfeers of the poor: and THE COURT refufed to quafh the order upon that exception, because as before the inftitution of overfeers Ld. Ray. 1198. the juftices might order the money to be paid to two or three of the inhabitants, fo now they may to the overfeers. BUT the order was quafhed, because it was faid, "We the faid two juftices doth adjudge," inftead of do adjudge. An order may 582. Rex v. Wefton, Trinity Term, 4. Ann. MSS.— direct payment Two juftices made an order upon one cfton, adjudging on a particular him to be the reputed father of a baftard child, and orday weekly. dering him to pay fo much weekly for its maintenance, viz. every Monday. It was objected, that they had gone beyond the power given them in the ftatute; for com.puting 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 should not be complete on that day. An order of bastardy must ftate that the child was born in the parish, S. C. Sett. & An order to years old," is bad. 1. Seff. Caf. 41. 583. Rex v. Cuddington, Eafter Term, 9. Ann. MSS.Two juftices made an order on the reputed father of a baftard child, that he should pay fo much weekly and every week to the overfeers of the poor of Cuddington "until the faid child fhould be able to gain its liveli"hood." The order alfo omitted to ftate, that this baftard child was born in the parish. And on its being removed into the king's bench, and exception taken to it by SERJEANT DARNEL, it was quashed. 584. Smith's Cafe, Eafter, Poor's Sett. 64.-To an order pay "till eight to pay one fhilling a week" till the child is eight years "old," it was objected, that it ought to be "as long as the "child is chargeable;" for poffibly he may gain a fettleCaf. of 9. 64. take him-PER CURIAM. A remote poffibility! As to the ment, or a perfon may give him an eftate, or the father may father's taking him, he ought to have done it at first; and by fuffering the order to be made, it fhall be deemed a refufal in law: befide, he fhall not be then fuffered; he (4) Vide the may fell him, or make away with him, as too often hapCafe of New pens. (a) land. Ofman, ante, page 406, pl. 537. An order to pay money dif burled, without laying by whom, is good. 585. Reg. v. Smith, Hilary Term, 11. Ann. MSS.-Two juftices make an order upon Smith, (as the reputed father of a baftard child) to pay forty fhillings for money S. C. Sett, & Rem. 40. difburfed, |