proved to be a baftard, no fuch exception was taken as in the prefent cafe; but the defendant merely infifted upon the old notion of the hufband's being within the four feas. In the cafe of Kamfay, on an indictment on the ftatute 3. Hen. 7. c. 2. for forcibly taking away a woman and marrying her, the wife was admitted an evidence, becaufe none elfe except the defendant were prefent. Therefore it is very proper to admit this woman to prove what was done in fecret, and what it cannot be prefumed there are other witneffes to prove: but then it must be admitted no further than neceffity warrants; and in all other cafes the rule of law is to be adhered to. REX V. READING. though the de 528. Barker v. Sir Woolfton Dixie, Eafter Term, 9. Geo. 2. Plaintiff's wife Annalley's Rep. 264-In an action for a malicious profe- not admitted to cution, the defendant was willing that the plaintiff's give evidence, wife thould be examined.-LORD HARDWICKE. The fendant was dereafon why the law will not fuffer a wife to be a witnefs firous to confent. for or against her husband, is to preferve the peace of families, and therefore I fhall never encourage fuch a confent; and the was not examined. 529. May v. May, Eafter Term, 10. Geo. 2. 2. Str. 1073. The evidence of - In a queftion on the plaintiff's legitimacy, it was re- the parish re folved that there can be only one regifter in one parifh; gifter cannot be that the day-book in which entries may be originally the day-book. made cannot be read to contradict the regifter. contradicted by husband be le gally proved, the hufband be alive or dead. S. C. Andr. 8. 530. Rex. Bedall, Trinity Term, 10. Geo. 2. Str. 1076. If non access of a -An order of juftices was made upon Moor as the putative father of two baftards born of the body of Elizabeth, juftices may the wife of Richard Sharplefs, in which it was ftated, tliat make an order for feven years before the husband had had no access to her, of bastardy, the having never feen or heard of him in all that time, and without enquirnot knowing whether he was alive or dead; which the ing whether the juftices adjudged to be true, and that Moor is the father of the baftard children. Upon appeal to the feffions the cafe is flated with fome variation, viz. that in 1728 fhe was married to Sharplefs, then a foldier in Mullin's troop, in a Rep. 379. barn, by a perfon not in the habit of a clergyman; that 1. Will. 340. there had been no accefs for feven years; but it appeared by a certificate from the commiffary-general's office, dated 7th April 1737, and from the evidence of Simon Clarkson, that one Richard Sharplefs, who he was told was formerly in Mullin's troop, was muftered as a private. gentleman in the third troop of horfe guards from June 1733 to February 1736, though Clarkfon faid he could not take upon him to fwear that it was the fame Richard Dd Sharpless DALL. REx v. BE Sharpless pretended to be married as aforefaid: upon this fuppofition of the hufband's being alive, the feffions were of opinion the children were not baftards, and reverfed the order of the two juftices.-Upon debate (in the abfence of THE CHIEF JUSTICE) the order of feffions was quafhed, and the order of two juftices confirmed; for it being ftated in both orders that there was no accefs, it was immaterial whether the hufband was alive or not: but if it was material here is no evidence to prove it, the identity not being fworn to; or if it was, yet the evidence of his being alive was improper to have been received, and even the marriage itself doubtful. No evidence fhall be heard upon a fecond order to illegiti. S. C. 1. Burr. 1172. (a) Salk. 524. Carth. 516. An order of baf tardy against a married woman cannot be made only. 531. Rex v. the Parish of Woodchefter, Mich. 16. Geo. 2. MSS. An order in 1731 to remove A. and his wife from Nympsfield to Woodchefler was not appealed from. They afterwards returned to N. and had there three children, who were now fent (by order of juftices) from N. to Woodchefter with their father. Upon appeal, it was offered to be given in evidence that A. had a former wife, and confequently the children born at N. were baftards, and fettled there. The feffions would not permit Woodchefter to go into this evidence. -PER CURIAM. Both orders must be confirmed. The marriage being eftablifhed by the firft order, which was acquiefced in, the fettlement of the children follows of courfe, and can no way be impeached but by entering into the merits of the first order. Nothing is better established than that an order unappealed from is conclufive (a). 532. Rex v. Rooke, Mich. 26. Geo. 2. Wilf. 340.-An order was made that the defendant should maintain a bastard child, and it was made upon the oath of a married woman on her teftimony alone, who fwore that her husband was in gaol long before fhe was got with the baftard child and ever fince, and that fhe had no accefs to him, and that Rook got the baftard. -PER CURIAM. It was faid by LORD HARDWICKE, in (a) Ante, pl. Rex v. Reading (a), that although a wife may be admitted to prove the fact of adultery, the fhall not be admitted to prove that her husband had no accefs, because that may be proved by other perfons, and an order of bastardy therefore could not be made on her oath alone. The cafe of the Parish of Bedall (b) differs from this, for there were witneffes to prove the hufband had no accefs; and as the juftices have determined folely on the evidence of a wife, the order must be quashed. 527. (b) Ante,p.401. ́pl. 530. III. Ey III. The duty and authority of the parish-officers: ficers where a baftard child is born must main -the mother re 533. Twining v. Tewkfoury, Gloucefter Affizes, 8. Car. 1. The parish-of2. Bulft. 349. A fervant-maid dwelling in Twining was there got with child, and the being near the time of her delivery, by practice was conveyed out of the parish of tain it, except Twining unto an outhoufe, a hovel of one Edward Baughs, the birth in fuch an inhabitant in Twining, the which hovel was near parish was contrived by fraud; Twining, but within the parish of Tewksbury, being the and in fuch cafe ontermoft confines of it, and there the child was born. it fhall be The parish of Twining afterwards gave relief to the mo- maintained by ther, and the minifter of Twining chriftened the child, the parish where When the mother was able to remove, the parish of fided, and from Twining received her and her child, and gave relief to her which the was for two years. The mother afterwards falling fick, the fo fraudulently parish of Twining fent her and her child to Longden, in fent. the county of Worcester, where the mother died. The parith of Longden fent the child to Twining, and the overfeers of Twining fent it, being under the age of three years, to Tewksbury, within which parifh the child was born, and Tewksbury fent the child back again to Twining. The queftion was, Which of thefe two parishes were bound in law to provide for and maintain this bastard child?SIR WILLIAM JONES, Justice. Legally and relarly, all baftard children are to be kept by the parish. where they are born, provided no practice be made ufe of to have the child there born; but if any fuch practice be proved, then this rule fails, and the child is to be kept and provided for by the parish where the mother dwelt, and where he was got with child, and which had used this practice to have the child born in another parish. This practice being very apparent in the prefent cafe, the Court ordered that the child should be maintained by the parish of Twining. 534. Richards and Salmen v. Hodges, Trinity, 2. Car. 2. The parish-offi 2. Saund. 83.-Richards and Saimon, being churchwar-cers cannot infift upon maine dens, brought an action against Hodges, on his bond in, taining a bastard the ufual form to indemnify the parifh in the cafe of a child, if the pu baftard child. The defendant pleaded non damnificatus, tative father of generally. The plaintiffs replied, that neither the defen- fers to provide for it. S. C. 1.Sid.444 dant nor any other for the fpace of one month after S.. 1. Mod.43. ruaking of the bond did provide any maintenance for the child; by reafon whereof the parishioners, to prevent s. c. 2. Keb. the faid child's perithing by hunger and cold, were forted 6.2. 612. for all the time aforefaid to pay, and have paid, four fhil- Pott. lings for the maintenance and nourishment of the faid pl. 537. P 406; 1 own wrong. RICHARDS and child. To which the defendant rejoined, that he would SALMON . have nourished the faid child at his proper cofts and HODGES. charges for all the time aforefaid, and offered fo to do, as If the parish well to the plaintiffs as to other the parishioners; but officers bring an they refufed to permit him, and against the will of the action on a ba defendant put the faid child to nurfe, and paid the faid baftardy bond, the defendant muft four fhillings: upon which rejoinder, the plaintiffs deplad, that the murred in law And by THE COURT, The rejoinder is damnification not good, because it is a departure from the first plea in was of their bar; for the defendant in his plea fays, that the parishioners were not damnified: and when the plaintiffs by their replication fhew how they were damnified, there the defendant cannot rejoin that this damnification was of their own wrong, as here he hath done; but he ought to have pleaded that at firft in his plea in the bar. And though it was urged for the defendant that this was no damnification at all, becaufe it was the voluntary act of the parish to put the child to nurfe when the defendant himself offered to maintain it, and that they ought not to take the advantage of their own wrong, yet it was not allowed. For THE COURT held clearly, that the rejoinder was a departure; and for that reason it was adjudged for the plaintiffs. The parish-officers cannot re move baitard children from the parish where they are main tained to the parish where their mother af· terwards gains a fettlement by marriage. S.C.Comb.208. S. C. Sett, & Rem. 205. 535. Shermanbury v. Bolney, Trinity Term, 5. Will, & Mary, Carth. 279.-A poor man who was lawfully settled in the parish of Bolney, married a woman who was an inhabitant of the parish of Shermanbury, who at that time had three children living all under the age of feren years, and maintained by the parish of Shermanbury, at the weekly allowance of 3s. After this marriage, the mother and her three children were fent to the parifh of Bolney, where her husband was fettled. Hereupon the juftices, upon the complaint of the parishofficers of Bolney, made an order, that the parishioners of Shermanbury fhould continue to pay the 35. per week towards the maintenance of the children; which order was confirmed upon an appeal. And being removed into B. R. by certiorari, it was now moved to quash it, becaufe the juftices had no power to make an order for fuch payment towards the maintenance of the children now they dwelt in another parish.-SED PER CURIAM, The marVide poft, page riage of the mother into the parifh of Bolney fhall not fettle the children there, uniefs they were nurfe-child, en, for fuch must go with the mother. But it was doubted, whether thefe children, being under seven years old, fhall be reputed to be nurfe-children. Then it was objected, that it did not appear in this cafe but that the father-in 411. law law was of fufficient ability to maintain these children. -To which it was anfwered by G. EYRE, Justice, that where the relations are obliged to maintain their poor friends, fuch poor people fhall not be removed out of their own parith where they are fettled, unto that parish where their relations live; for by that means, upon the death of fuch relations, the parish where they lived may become chargeable, which ought not to be, and therefore the poor perfon fhall continue in his own parifh, and his relations fhall maintain him there.-ET PER CURIAM, This cafe is within the equity of the ftatute for the relief of the poor and there is no reason that Shermanbury fhould be difcharged of the children by their mother's marriage. SHERMAN BURY V. BOLNEY. tard child has a natural right to the care and 536. Rex v. Cornfort, Hilary Term, 15. Geo. 2. MSS.-The putative fa-The defendant married a natural daughter of one thera basBohun, who was but fifteen years old; and the question was, Whether, as fhe was his natural daughter, this cafe was within the 4. & 5. Phil. & Mary, c. 8.? It appeared education of it, he was a diftant relation, went to her father's houfe and therefore it upon a vifit, and was entertained there, and made his ad- cannot be taken dreffes to the lady, but the encouragement in the affair dy. from his cufto first arose from her. An information was moved for against the hufband and feveral other perfons concerned in this tranfaction.-CHIEF JUSTICE. The foundation S. C. 2. Stra ̧ of this application I take to have been a contrivance for 1162. the defendant to do an unlawful act, viz. to take away this young lady, who appears to be under fixteen, out of the poffeffion of a perfon having by lawful means the government and education of her, without his confent; which by the ftatute is declared to be unlawful. If there appears a reasonable fatisfaction that they have done fo, it will fubject them to an information; and it is not neceffary in this cafe for the Court to give any judgment upon the fact, whether legitimate or not: neither is that the point in the act, but the taking her from the poffeffion of a perfon having by lawful means the government of her; and therefore whether this taking was by device of his own or the fchemes of the lady will make no difference. As this is for a confpiracy and confederacy, if there is a reasonable fatisfaction that the other defendants had any knowledge of the affair, that will be fufficient to join them in the information; I am therefore for granting the information.-CHAPPLE, Justice. If it had refted fingly on the fecond fection of the act, 1 fhould have had fome difficulty; but it is plain from the fecond and third fections together that they intended to take in different Dd 3 |