REX V. ELING. Caf. 10. was error upon a judgment on an indictment for fuffering an efcape of perfons qui commiffi fuerunt by justices of the WHITE and peace under the ftatute 8. Hen. 6. for a forcible entry: the error affigned was, that it is not expreffed how the commitment was made, whether upon view of the juftices, or verdict upon an indictment; fo that it doth not appear that they were legally committed, nothing of the proceedings being fet forth, and it not being even faid, debito et legitimo modo commiffi; and the Court held, that it being but inducement to the offence whereupon this indictment is, that it is well enough alledged, and after the verdict they muft intend" the commitment was "legal." That the cafe of (a) the King v. Pollard and (a) 2.Ld.Raym Taylor was very fimilar to the prefent; and that there in 1370. an indictment against an acceffary, it was not holden ne- S. C. 2. Seff. ceffary to aver that the principal could not be taken: that S.C.S.Mod.264 the prefent was not the cafe of a penal ftatute; and that Fo. 375. here every thing material was fet out. As to THE SECOND OBJECTION, "that the order of reimbursement "was not of the fame date with the order of mainte"nance, but long after, and that it directed the payment "of a grofs fum," they infifted, that the words of the act must receive a reasonable conftruction: that, if taken ftrictly, it would in all cafes be nonfenfe; but that in this particular cafe it was impoffible that it could be fo taken, as the order of maintenance was made (b) before the act paffed: that tlie words "at the fame time" must be conftrued adverbially, and to mean "alfo" or "like"wife" and that the fum directed was very reasonable for the length of time; and in a large parish was too fmall to become the object of a new affeffment. To THE LAST OBJECTION, that it does not appear, that the militia-man himself was ballotted, or that his fubftitute was fworn or enrolled, they urged, that it appeared, that the fabftitute ferved for his principal; and that out of this whatever elfe was called for by the objection arose as neceffary inference; for that the fubftitute could not have served at all without having been fworn and enrolled; or in the character of fubftitute, had not his principal been previously ballotted and drawn. PEMBERTON, A. in fupport of the rule to arrest the judgment, infifted, FIRST, that in criminal proceedings nothing is aided by a verdict: that they differ altogether from civil actions: that the ftatutes of jeofails do not ex (b) This act paffed on the thirtieth of June 1779, and the order of maintenance muit have been on or before the aunty-fourth of the fame month, as the indictment fates, that the tend REX v. ELING. tend to them, and did not even to the cafes of mandamus WHITE and, and quo warranto, till the ftatute of 9. Anne, c.20.1.7.; that the order of maintenance was not matter of inducement, but the very foundation upon which the whole authority of the magiftrate refted. LORD MANSFIELD topping PEMBERTON), In indictments the crime, with which the defendant is charged, muft appear with a fcrupulous certainty: and here it is difobedience to the order of a juftice. Now it muft appear upon the face of the indictment that this was a legal order; for if it is not fo, difobedience to it is no crime. Then this is an order of reimbursement, which pre-fuppofes an order of mainte uance. Such order neceffarily muft be; for, if the overfeers had made the difbursement of their own accord, and without an order for that purpofe, they could not legally be reimburfed. Such voluntary payment would not have entitled them to reclaim the fum advanced, becaufe they are not authorized to judge of circumftances. Had the justice of peace recited the order of maintenance, 'tis admitted the indictment would have been good and had he even in general terms referred to it, the Court might perhaps (a) have prefumed fuch order properly made. There would then have been fome colour of authority for the jurifdiction exercifed. But, fo far from having recited it, he has not made the flightest reference to it. The indictment therefore cannot be fupported. Befides, the order of reimbursement is not at all connected with the order of maintenance, though the act requires, that they fhould both be made by the fame juftice at the fame time, i. c. that whatever thall be paid thall be reimburfed; but this is at the diftance of a year, and for a grofs fum.--WILLES, ASHHURST, and BULLER, Juftices, concurring, Rule abfolute, and Judgment arrested. (a) It has been adjudged, that in an indictment where the jurifdiction exercifed is founded upon a former order, a general reference to fuch order, without ftating it, is not fufficient to fupport the indictment. H. 20. Geo. 3. Rex v. Winship and Grunwell, overfeers, &c. Cald. 72.; and ante, page 359. pl. 462. But in Rexv. Thomas Mytton, Efq; Eafter, 25. Geo. 3. 1785. on an indictment on the 21. Geo. 3. c. 31. for difobeying an order of feffions at Shrewfbury, on an appeal against a conviction for not giving in a lift of his male fervants, pursuant to the direction of the ftatute, MR. CALDECOT, ON motion in arteft of judgmem objected, that the indictment did not fate the proceedings before the juftice, but โก CHAP CHAPTER THE EIGHTH. 479. BASTARD S. I. The ftatutes relating to bastards. III. The duty and authority of the parish-officers. V. The complaint and examination. X. Of the jurifdiction of the feffions. XII. The punishment of the mother and reputed father. B where a baftard Y 18. Eliz. c. 3. f. 2. it is recited, "That BAS- Any two juf "TARDS begotten and born out of lawful ma- tices in or next "trimony being now left to be kept at the charges of the to the parish parish where they be born, to the great burden of the is born, may ex"fame parish, and in defrauding of the relief of the im- amine the matpotent and aged true poor of the fame parifh;" AND ter, and make ENACTED, "That two juftices of the peace (where- an order of baf"of one to be of the Quorum (a), in or next unto ardy. 46 66 "the limits where the parish church is, within which (a) Vide ante parish fuch baftard fhall be born), upon exami- page 1. notis. "nation of the caufe and circumftance, fhall and may, "by their difcretion, take order, as well for the punifh- may make an order of main. tenance. 480. By 18. Eliz. c. 3. "And the faid juftices fhall The juftices "and may likewife, by like difcretion, take order for the "keeping of every fuch baftard child, by charging fuch "mother or reputed father with the payment of money weekly, or other fuftenation for the relief of fuch child, "in fuch wife as they fhall think meet and convenient." ་་ 481. "And The father or mother of a baftard child may be com obeying the justices order: but the order 86 481. And by 18. Eliz. c. 3. f. 2. "If, after the fame order by them fubfcribed under their hands, any the faid per"fons, viz. mother or reputed father, upon notice thereof, mitted for dif- "hall not for their part obferve and perform the faid or"der; that then every fuch party fo making default in not performing of the faid order, to be committed to ward to "the common gaol, there to remain without bail or main"prize, except he, the, or they fhall put in fufficient furety to perform the faid order, or elfe perfonally to appear at at the next general feffions of the peace to be holden in "that county where fuch order fhall be taken; and alfo "to abide fuch order as the faid juftices of the peace, or must be in the alternative, to give fecurity, OR to appeal she feffions. The justices mother of baftard children to the houfe of Correction. 66 more part of them, then and there fhall take in that be"half (if they then and there fhall take any); and that if "at the faid, feffions the faid juftices fhall take no other "order, then to abide and perform the order before made, as is aforefaid." 66 482. By 7. Jac. I. C. 4. f. 7. "And becaufe great charge may committhe arifeth upon many places within this realm by reafon "of baftardy, BE IT ENACTED, That every lewd woman "which fhall have any baftard which may be chargeable "to the parish, the juftices of peace fhall commit fuch "lewd woman to the house of correction, there to be punished, and fet on work during the term of one "whole year; and if the fhall eftfoons offend again, that "then to be committed to the faid houfe of correction as aforefaid, and there to remain until fhe can put in good "fureties for her good behaviour not to offend fo again. The SESSIONS fhall have the fame authority tardy as 66 66 483. By 3. Car. 1. c. 4. f. 15. fo much of the 18. Eliz. c. 2. as concerneth bastards begotten out of lawful main cafes of baf trimony is continued; with this," that all juftices of the peace within their feveral limits and precincts, and in "their feveral feffions, may do and execute all things con"cerning that part of the faid ftatute, that by justices of "the peace in the feveral counties are by the faid statute "limited to be done. given to Jus TICS OF PEACE. Putative fathers dren, how to be proceeded againit. 66 484. By 13. & 14. Car. 2. c. 12.f. 19. "And whereas the of baftard chil- << putative fathers and lewd mothers of baftard child: en run away out of the parith, and fometimes out of the "county, and leave the faid baftard children upon charge of the parifh where they are born, although fuch putative father and mother have eftates fufficient to difcharge fuch parifh; BE IT ENACTED, that it fhall "and may be lawful for THE CHURCHWARDENS and OVERSEERS for the poor of fuch parifh, where any "baftard child fhall be born, to take and feize fo much "of the goods and chattels, and to receive fo much of the "annual rents or profits of the lands of fuch putative fa"ther or lewd mother, as fhall be ordered by any Two JUSTICES OF PEACE as aforefaid, for or towards the "difcharge of the parish, to be confirmed at the feffions, "for the bringing up and providing for fuch baftard "child: and thereupon it fhall be lawful for THE SES"SIONS to make an order for the churchwardens and "overfeers for the poor of fuch parifh to difpofe of the "goods by fale or otherwife, or fo much of them, for "the purposes aforefaid, as the court fhall think fit, and "to receive the rents and profits, or fo much of them as "fhall be ordered by THE SESSIONS as aforefaid, of his or "her lands." any Perfons fued for matters in this act, may plead 485. By 13. & 14. Car. 2. c. 2. f. 20. "And if perfon or perfons fhall be fued for any matter or thing which he fhall do in execution of this act, he may the general if"plead the general iffue, and give the fpecial matter in fue. "evidence; and if the verdict fhall pafs for the defen"dant, or if the plaintiff be nonfuited, or discontinue "his fuit, the defendant fhall recover treble damages." 66 66 chargeable may 1. C. 4. 486. By 6. Geo. 2. c. 31. "Whereas the laws now in The mother of a "being (a) are not fufficient to provide for the fecuring baftard child and indemnifying parishes and other places from the great likely to become charges frequently arifing from children begotten and apply to the juf "born out of lawful matrimony: for remedy thereof, tices of the paBE IT ENACTED, That if any fingle woman fhall be de- rifh, and fwear "livered of a bastard child, which fhall be chargeable, or it to any person. "likely to become chargeable, to any parifh, or extra- (a) See18. Eh parochial place, or fhall declare herfelf to be with child, c. 3. 7. Jac. 1. "and that fuch child is likely to be born A BASTARD, and C.4. and 3.Car. "to be chargeable to any parifh or extra-parochial place, "and fhall, in either of fuch cafes, in an examination to "be taken in writing, upon oath, before any one or more "justice or juftices of the peace of any county, riding, "divifion, city, liberty, or town corporate, wherein fuch parish or place fhall lie, charge any perfon with having "gotten her with child, it shall and may be lawful to and And the justices "for fuch juftice or juftices, upon application made to may apply to fuch perfon, or "him or them by the overfeers of the poor of fuch parish, apprehend him "or by any other of them, or by any fubftantial houseby his warrant ; "holder of fuch extra-parochial place, to iffue out his "or their warrant or warrants for the immediate appre"hending fuch perfon, fo charged as aforefaid, and for "bringing him before fuch juftice or juftices, or before "any other of his majefty's juftices of the peace of fuch 66 county, C c |