(a) Ante, pl.

542.

REX V.EVE. ed to quafh this order: firft, because there is a fum ordered befides the weekly payment: and, fecondly, upon the authority of Smith's cafe (a), because fecurity is ordered to be given for performance of the order.-THE COURT. The order as to the firft exception is well enough; for it has been often and often ruled, that the reputed father ought to pay the extraordinary charges; but as to the fecond, the recognizance ought to be in the disjunctive; for the binding him to perform the order is to exclude him from the benefit of his appeal to the quarter-feffions. The order was therefore quashed as to this part, and confirmed as to the rest.

The order of

juftices is conclufive of the fact of baftardy. until it is reverfed.

Salk. 524. Carth. 516.

543. Webb v. Cook, Mich. Term, 19. Jac. 1. Cro. Jac. 535. and 626.-PROHIBITION to ftay a fuit in the ecclefiaftical court for defamation, in calling Cook a whoremafter, and faying that he had a baftard; and fhews that the defendant, who fued in the spiritual court, was fentenced, at the feffions at Norwich, for having this baftard, and ordered to keep it; and therefore, the fpiritual court could not examine this again. Upon this fuggeftion, the defendant demurred: and IT WAS ADJUDGED that the prohibition fhould ftand; for, being fentenced to be the reputed father by the juftices at feffions, by authority of the law, it cannot be now impeached in the Ante, p. 402. fpiritual court or elsewhere, and all are concluded to fay the contrary, until it is reversed.

pl. 531.

The juftices

cannot order the churchwardens to

feize fo much

of the defen.

think proper; or compel the

544. Reg. v. Chaffey, Eafter Term, 2 Ann. Ld. Raym. 858. Several orders were made by the juftices in Wilts against the defendant, as the putative father of a bastard child. Motion was made to quafh one of them, by which the churchwarden and overfeers are directed to dant's goods feize what they themfelves fhould think proper of the as they fhall defendant's goods, to fecure the parish from the maintenance of the child; becaufe by 13. and 14. Car. 2. putative father C. 12. the juftices have only authority to make an to give fecurity, order enabling the churchwardens, &c. to feize what until he has the juftices thould think proper, and this order for this omitted to pay reafon was quathed. Then exception was taken to the original order, in which it was ordered that the defendant fhould give fecurity for payment of the fum by SC.3. Salk.66. them the juftices impofed for the maintenance of the child, when it did not appear that the defendant had difobeyed the order in point of payment; whereas by the 18. Eliz. c. 3. an order for fecurity cannot be made till after contempt.-And for this reafon the order was quallied as to that part, and was confirmed as to the re

the money or

dered.

མན་ས་

fidue; and, PER CURIAM, When an order is confirmed in this court, an attachment lies for non-performance of it, and therefore this Court will not take fecurity of the party for the performance of it. But if the original order had been at feffions, not removed hither, the Court would have taken fecurity of him to appear there.

REX v. CHAFFEY.

fufal to enter

cannot.

545. Reg. v. Weft, Eafter Term, 4. Ann. Ld. Raym. The justices out 1157. The defendant was adjudged by two juftices the of feffions may father of a baftard child, purfuant to the 18. Eliz. c. 3. and imprison for re ordered to pay; and upon appeal the order was confirm- into recognied at the fellions, and for not paying the money he was zance, but the committed; and now was brought into court by a writ juftices at fefof habeas corpus.-HOLT, Chief Juftice. The feffions fions on appeal proceed by way of appeal in this matter, by the power given them by the 18. Eliz. c. 3.; but by that ftatute S. C. 11. Mod. they have no power to commit for difobedience to their 59. order. That ftatute directs a recoguizance to be taken See 2.Bulft.341. by the two juftices who make the order, which if the party will not enter into, they, the two juftices, may cominit him. Indeed, if the feffions proceed originally by 3. Car. I. c. 4. they may commit for the non-performance of their order. It is immaterial to the prefent point whether the juftices did take a recognizance or not, because their neglect would not give the feffions a power to commit, which the ftatute does not give them. -The defendant was difcharged.

order at any distance of time.

546. Rex v. Miles, Mich. Term, 1. Geo. 1. 1. Seff. The juftices Cafes 77. On motion to quafh an order of baftardy, it may make an was refolved, that if the father ran away, and returned, though fourteen years after, yet an order to fix the child on him is good, for there is no ftatute of limitation in thefe cafes.

547. Rex v. Butcher, Trinity Term, 7. Geo. Str. 437. The juftices An order of baftardy was made in thefe words: "We cannot make an "A. and B. two juftices of the borough of Lyme Regis, parish where the order unless the refiding within the limits where the parish-church is, child be born "within which parifh the child was born, do, &c." is itated. And it was quafhed, becaufe there was not an averment Salk. 472. where the child was born; for this is only an averment Bac. K. B. 526. that the juftices refided in that parith where the child was born; but that might not be the fame parish to which relief was given.

548. Rex v. Chandler, Mich. Term, 11. Geo. 1. Str. 612. The juftices cannot punish a Indictment for fecreting a woman big with an illegitiperfon for femate child, fo that the fhould not be had to give evidence creting a woabout the father. The defendant demurred: and by the man big with

REX V.

Court: Judgment must be given for the defendant, for the CHANDLER. child cannot be illegitimate before it is born, there being always a poflibility that it may be born in lawful wedlock; and by this ftatute the woman is not to be compelled.

After an or

der of juftices is difcharged

at feflions, the justices

cannot make a fresh order

upon the fame perfon.

549. Rex v. Tenant, Mich. Term, 13. Geo. 1. Ld. Raym. 1423. Order was made upon the defendant by two juftices to maintain a baftard child, as being the reputed father; which order, after the merits were fully heard at the feffions, was there difcharged; and the defendant was bound to appear at the next quarter-feffions, under an apprehenfion, as it was fuppofed, that better evidence might be found against him. After this, the fame two S. C. Stra. 716. juftices made a new order upon the defendant to keep S.C. 1.Seff.Caf. this baftard child. The laft order of the two juftices was now quafhed by the Court, because they have made an order upon the defendant, which was afterwards regularly discharged upon appeal upon hearing the merits. 2. Buit. 355. The defendant was legally acquitted, and cannot be drawn in question again for the fame fact (a).

272. 1. Vent. 59. Cro. Car. 350.471.

341.

The juftices cannot order

that the puta

tive father shall
give fecurity
to perform the

order.

S. C. 2. Seff.

Caf. 348.

Vide ante,

550. Rex v. Messenger, Eafter Term, 8. Geo. 2. MSS. —Mr. Abney moved to quafh an order of baftardy made by two juftices of the liberty of the Tower of London, and confirmed at the feffions held for the liberty, whereby the defendant was adjudged the father, &c. on the 18. Eliz. c. 3. for that it did not appear in the original order, nor that of the feffions, in what county the liberty of the Tower was, that the party might know where to appeal, but it is only in the narP. 416. pl. 544. gin," to wit, Liberty of the Tower of London." And "to SECONDLY, for that the juftices in the latter part of the order have ordered the defendant, generally, to give fecurity to perform the faid order, when by 18. Eliz. c. 3. he has his election either to give fecurity, or to enter into a recognizance to appear at the next quarter-feffions, &c.-CLARK, in fupport of the order, faid, the liberty of the Tower of London is a diftin&t liberty, and in all refpects the fame as to the prefent cafe as a county. It has a feparate commiffion of the peace, officers of its own, and quarter-feffions; and 3. Car. 1. c. 4. referring to 18. Eliz. c. 3. gives juftices of a liberty the fame jurifdiction as juftices of a county, which is ftill plainer from 6. Geo. 2. c. 31. As to the objection, he faid, as touching the fecurity, the defen

(a) See alfo Pridgeon's Cafe, H. 9. Car. Cro. Car. 353. in which it was determined that the statute

3.Car.1.c.4. doth not aid in this case, nor enable one feffions to alter what was ordered in a former feffions.

dant

Rix v.

not ftate in an order of filiation in what

dant had determined his choice by giving fecurity, which was at least an election by implication.-LORD HARD- MESSENGER. WICKE, Chief Justice. An exprefs appeal is not directed The juftices of by the 18. Eliz. c. 3. but arifes from a conftruction of a liberty need that act; and I do not know whether the want of an averment in what county the liberty was, be an exception on that statute; however, that is fully cleared up county fuch by 3. Car. I. c. 4. fo that as to that exception the original liberty is fiturder is good. But the SECOND OBJECTION is fatal; for ated. by 18. Eliz. c. 3. the putative father has an election to enter into a recognizance or to give fecurity; and fuch order can be made only on default: therefore, as to that the original order must be quafhed, though confirmed as to the first part on the Fift Exception; and the order of feffions confirming the original order must be quafhed in toto.-THE COURT agreed, and further faid, The reason why the county fhould be in the margin, was to fhew the fact arofe in the county wherein the juftices have jurisdiction, not that the party may know where to appeal.-NOTE, No recognizance was taken of the defen- See Rex v. dant to appear at the next general quarter-feffions for the Woodchefter, liberty, &c. the part of the original order as to the fe- ante, p. 402. curity, and the order of the feffions in toto, were quafhed. Pl, 531. And the reafon is, for that the defendant was bound by that part of the order confirmed as to the firft exception, whereby and for the not performing of which he might be committed.

tices out of feffions cannot make an order

551. Rex v. Fenkin, Trinity, 9. Geo. 2. B. R. H. 301.- The two juf LORD HARDWICKE. An order of baftardy made by two juftices was removed hither, and is to this effect: "WHEREAS Complaint has been made to us by the over- to acquit or dif"feers of the parish of Christ Church, that M. B. fingle charge the perwoman, was delivered of a bastard child, &c. and hath fon who is charged Jenkin with being the reputed father thereof, charged with being the re"&c. we therefore, &c. both dwelling next to the said puted father "parish, having taken and confidered the examination, of a bastard "and heard upon oath the proofs alledged before us, da child.

66

adjudge that he is not the reputed father of, &c. and 2. Stra. 1050. "do acquit him of the fame." The objection is, that 2. Seff. Cafes, thefe juftices have no authority to give a judgment of 229difcharge; and we are of that opinion. Their whole authority out of feffions in matters of this nature arifes by the 18. Eliz. c. 3. and the power given thereby is not of judicature, but merely to proceed by way of order, as in many other cafes. And therefore the words of the statute are, that they fhall take order;" and accordingly it has been treated in this court as an authority to them to make orders, and not as giving them a jurifdiction to

E e 2

convier

1

REX V. JINKIN.

convict or acquit the parties; for the orders have been always made in English, and the evidence not required to be fet forth, nor to fet forth that the party was fummoned; but it has been looked upon to be fufficient to fay in the words of the ftatute, "upon examination of "the cause and circumftances;" and if it had been taken to be a proceeding to convict or acquit, they would all have been neceffary. The queftion then is, What words. in this ftatute warrant the juftices in making fuch an order as this, which is neither for the relief of the parith, nor for the punishment of the party, which are the only two forts of orders which the ftatute empowers them to make? If this matter had been examined at the feffions, as it may be originally by virtue of the ftatute of 3. Car. 1. c. 4. f. 16. it was faid, that they might have an order to difcharge him, which would be a good order and final; and that therefore, by parity of reafon, the two juftices might do fo; for it was faid, that the words of the ftatute which give the feffions jus rifdiction refer to the manner of procceding by two juf tices. It is true, that, in Slater's Cafe (a) and in Pridgeon's Cafe (b), it was held, that neither two juftices, or a fe(b) Cro. Car. cond feffions, could reverfe an order of difcharge made at the feffions: fo likewife in Tenant's Cafe (c), two juf tices made an order to charge the defendant, who appeared and was discharged; and an order made afterwards by two other juftices to charge him was held void and quafhed, Ld. Ray. 1423. becaufe he had been abfolutely difcharged at the fefAnte, p. 418. fions. But none of thefe cafes come up to this; for in pl. 549.

(a) Cro, Car.

479.

353.

(c) 1. Seff.Caf.

272.

2. Stra. 716.

all of them, the order which was taken to be final was made at the feffions, which is the laft refort in all these cafes; and therefore it was rightly refolved, that when their opinion was given, it fhould not be drawn over again by the fame court or by two juftices. It would be abfurd, that when two juftices have power by law to make original orders, and the feffions have power upon appeal from thofe orders, as well as by original application, that two juftices fhould have a power to alter their orders, when thofe very orders of alteration might be reverfed by the feffions; and it is reafonable that the order of seffions thould be conclufive. It would be inconvenient alfo to hold, that two juftices may make a final order; for the Aatute 18. Eliz. c. 3 gives the parifh no appeal, and the appeal for the party accufed arifes only from his being bound over to the feffions; but if the two jufttices might make a final order of difcharge, there is no inethod for the parish to appeal, but would be concluded for ever, without relief.-THE WHOLE COURT, The order must be quafhed.

552. Rex