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"or next the li

order a joint

pay the ex

pences of the

nor the feffions

peace.

552. Rex v. Skinn, Eafter, 15. Geo. 2. MSS. 2.-An or- The juftices, der of baftardy confirmed at the feffions was removed into though not "in the king's bench by certiorari, and the following exceptions « mits" where taken: FIRST, That it does not appear, that the juftices the church of who made the order were juftices "in or next the limits the parish is in "where the parish-church is," as directed by 18. Eliz. which the child C. 3. SECONDLY, That the maintenance is joint for both was born, may children, 4s. a week from 16th September, during fo long maintenance as the two female baftard children fhall be chargeable; of feveral bafwhereas it ought to be fo much for each; for if one die, tards, and that yet the defendant would be chargeable with the 4s. a week. the father fhall THIRDLY, That 31. is ordered to be paid towards the expences of the parish on account of the faid baftard parish, without children, and it does not appear what thofe expences were. ftating what FOURTHLY, To the order of feffions it was objected, that they are; but they award cofts of the appeal to be taxed by the clerk of neither they the peace on pain of contempt of the court, which they can order cofts have no power to do. To thefe objections it was an- to be taxed by fwered, FIRST, That the words of the ftatute, "juftices the clerk of the were in or next the limits," are only directory, and fo held in Rex v. Rooke (a): fo upon the 13. and 14. Car. 2. (4) Hai dres, 29. "juftices of the divifion" have been held only directory: fo upon the 43. Eliz. c. 2. overfeers are to be appointed within one month after Eafter, was held to be only directory in Rex v. Sparrow (5): and in Rex v. Maurice (c), (b) E. Seff. Caf. upon an appointment of overfeers, juftices" in or near 184. "the divifion" was held to be directory: fo in the cafe Ante, p. 17. of the Duke of Beaufort, and on the Gauze Act, the juf- Pl. 33, tices lived fifteen miles diftant, and held, that was only () directory. SECONDLY, If either of the children die, he is difcharged for it is to pay fo long as the two children fhall be chargeable. THIRDLY, They need not enumerate the feveral expences, but fay the expences in general is fufficient. As to the order of feffions, the feffions have no power to make fuch order as they think fit; but however that is, the order of feffions is at prefent immaterial.-THE COURT took time to confider of it; and afterwards gave their opinion, that the order of juftices is good, and alfo the order of feffions, except as to the awarding cofts to be taxed by the clerk of the peace; fo confirmed the order of juftices and of feffions, except as to the cofts, and that they quashed.

553. Rex v. Baker, Mich. Term, 19. Geo. 2. MSS, 2. The two juftices -Exceptions to an order of baftardy. FIRST, It is have no autho not faid to be made by juftices "in or next the limits;" rity to make an order of bafbut it was answered and agreed, that thefe words in the act tardy where the are only directory. SECONDLY, It is an extraparochial child is born in place; for it appears that the child was born in the foreign an extra-par

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of chial place,

REX V.
BAKER.

(d) See Rex v.
Childers, and
Rex. Willy.

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of Rygate. Anfer. It is alledged to be within the parifh; the foreign of Rygate is the parish of Rygate. THIRDLY, It does not adjudge that the child was born within the parish (a). FOURTHLY, It does not adjudge that the child is chargeable to the parish. Answer to the Third and Fourth objections. The order is entitled thus; "The order of us A. B. and C. D. juftices, &c. concerning a baftard child born in the foreign of Rygate "in the parish of Rygate, and chargeable thereto, of "which the churchwardens and overfeers of the foreign. (b) 1. Vent.87. of Rygate have made complaint (b)." FIFTHLY, It is not faid to be made upon complaint of the churchwardens and overfeers of the poor of the parish. Anfwer. It is not necessary; which was allowed by the Court.-THE CHIEF JUSTICE. By its being "concerning a bastard "child, &c. of which the churchwardens and overfeers "of the foreign of Rygate have made complaint," it seems to me under the complaint, and not any adjudication, that the child is born in or become chargeable to the parish; and if there is no adjudication that the child was born in the parith, the exception is good. The mentioning the child to be born in the parish is only in the title of the order and complaint of the churchwardens and overseers; and upon the Second and Third Exceptions therefore the order was quafhed. The First Exception was over-ruled (c) Ante,p.421. in Rex v. Skinn (c).

pl. 552.

The juftices

Cannot commit

a peifon for

554. Rex v. Southby, Mich. Term, 15. Geo. 2. MSS. -A. took a bastard child to nurse, and being fummoned by a juftice of peace was required to tell the name of the refufing to dif- father, and to give fecurity; both which he refufed, upon which the juftice committed him. On motion for an information against the juftice, THE COURT refufed to grant it, but faid he had done wrong in committing A.

cover the father

of a bastard

child.

Case The juftices

My reported

555. Rex v. Fox, Mich. Term, 30. Geo. 2. MSS.—A motion was made to quash an order of baftardy. It was putative father objected, that the juftices had ordered the putative father

cannet order a

J-Rd47. to get-urity to give fecurity to perform their order. -PER CURIAM. to perform their It is bad on the 18. Eliz. c. 3.; and the 6. Geo. 2. c. 31. extends only to cafes where women are enceint.

order.

The juices

may commit a

woman un

married at the

556. Rex v. Ellen Taylor, Eafter, 5. Geo. 2. Burr. 1679. She was brought up by habeas corpus from Lancashire, having been committed to the houfe of correction at Manchefter for difobeying an order of two juftices" adjudging her child to be a baftard, and ordering her to disobeying their order of maintenance, although he was married at the time the warrant of commitment was made.

time the baftard
was born, for

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"maintain

REX V.

TAYLOR.

"maintain it by paying 8d. a week for fo long time as "the child fhould be chargeable to the parifh," there to remain without bail or mainprize, except the fhall put in fufficient furety "to perform the faid order, or elfe, &c.” or be otherwife difcharged by due courfe of law. She was unmarried when the child was born, but was now married to Taylor.-LORD MANSFIELD. A feme-covert See Dr. Fofter's is liable to be profecuted for crimes committed by her. Cafe, 11. Co. This woman has difobeyed the order of the juftices, and 61. the 18. Eliz. c. 3. prefcribes the punishment here inflicted upon her. There is no need to fummon the hufband in a criminal profecution against the wife. SECONDLY, This is within the 6. Geo 1. c. 19. f. 2. She is committed for an offence, and for want of fureties. It is therefore within the provifion of that act, and a legal commitment; and it is better for her than a commitment to the common gaol.-WILMOT, Justice, had no doubt about it. The ftatute of 18. of Eliz. c. 3. exprefsly confiders the producing baftards as an offence; not only the getting or bearing the child, but the leaving it to be a burthen on the parish, and defrauding the relief of the true poor of it. Therefore the juftices may order a proper punishment, and alfo take order for the maintaining the child in relief of the parifh; they may do either or both. Matrimony does not discharge the crime: fhe is ftill the object of the law as to criminal jurifdiction. Such was the cafe of the woman felling (a) gin. There (a) 2. Stra. was no need to fummon the hufband. The hufband is 1120. not liable for the criminal conduct of his wife. SECONDLY, And if it be a crime, fhe is a criminal offender Two juftices within the ftatute 6. Geo. 1. c. 19. and may be com- may commit mitted to either prifon, as the juftices think proper. And a bastard child it is for the cafe, benefit, and advantage of the party com- either to the mitted to fend her to the house of correction rather than common gaol or to the common gaol. The order mentioned by MR. to the boufe of FOLEY was made upon a feme-covert "to keep the grand-correction, for difobeying an "child" but fuch orders made upon parents and order of main, children" reciprocally to maintain each other" are not tenance. upon the foot of criminality, but to give a moral obligation a legal efficacy,. As to the conclufion of the commitment, the words of the act are purfued. The addition of, "and until difcharged by due courfe of law," is only nimia cautela, and non nocet; it cannot vitiate the former part of the order.-YATES, Juftice, concurred. FIRST, All offences are perfonal, and no change of the offender's circumftances can difcharge her. The hufband was no object of this law, therefore there was no need to fummon him. SECONDLY, It is good within

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the

the mother of

REX V. TAYLOR.

foldier for dif

for he is not

fuch commit

ment by the Mutiny A.

the 6. Geo. I. c. 19. though it had been bad under 18. Eliz. c. 3.-MR. JUSTICE ASTON Concurred likewife. PER CURIAM unanimously, Remanded.

The juftices 557. Rex v. Archer, Hilary Term, 28. Geo. 3. 2. Term have authority Rep. 270.-The court of quarter-feflions in Worcester fhire, to commit a in April 1786, having adjudged the defendant, a foldier obeying an or- in the firft regiment of guards, and in actual fervice, to der of baftardy; be the reputed father of a female baftard child begotten on Martha Kent of the parith of Upton upon Severn, orFrotected against dered him to pay is. 6d. weekly to the churchwardens or overfeers of Upton, for fo long a time as the child fhould be chargeable to Upton upon Severn. At the next feffions held in July 1786, the defendant was committed to the bridewell for difobeying the order, till he fhould find fufficient fureties for the performance of it. A rule had been obtained last Term to fhew caufe why the order of feffions, by which the defendant was committed to cuftody for difobeying the order of baftardy, should not be fet afide, becaufe the defendant, being a foldier in actual fervice, was protected from being arrefted for that caufe under the mutiny act. By the 63d fection of that ftatute, to prevent, as far as may be, any unjuft or frau-dulent arrefts that may be made upon foldiers, whereby his Majefty and the public may be deprived of their fervice, it is enacted, "that no perfon whatfoever who is 66 or fhall be lifted, or who fhall lift and enter himself as "a volunteer in his Majefty's fervice as a foldier, fhall "be liable to be taken out of his Majefty's fervice by "any procefs or execution whatfoever, other than for fome criminal matter, unlefs for a real debt, or other juft caufe of action; and unlefs before the taking out "of fuch procefs or execution, not being for a criminal

66

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matter, the plaintiff or plaintiffs therein, or fome "other perfon or perfons, on his or their behalf, fhall "make affidavit, that to his or their knowledge the ori

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ginal fum justly due and owing to the plaintiff or "plaintiffs, from the defendant or defendants, in the ac"tion or caufe of action on which fuch procefs fhall "iffue, or the original debt for which fuch execution "fhall be fued out, amounts to the value of 201. at the "least, over and above all cofts of fuit in the fame action, ་་ or in any other action on which the fame fhall be "grounded; and if any perfon fhall neverthelefs be arrefted, contrary to the intent of this act, it fhall and may be lawful for one or more judge or judges of fuch "court, upon complaint thereof made, to difcharge fuch "foldier fo arrested contrary to the intent of this act."

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-ASH

ASHHURST, Juftice. It appears to me that the prefent cafe does not come within the provifions of the mutiny act. The firft part of the fixty-third fection was intended to apply merely to the cafes of civil actions: for it begins with ftating, that " to prevent any unjust "or fraudulent arrefts," &c.; that was the mifchief intended to be guarded againft: then it provides, that no perfon who fhall enlift, &c. fhall be liable to be taken out of his Majefty's fervice by any procefs or execution whatever, other than for fome criminal matter, or for a real debt amounting to 201. It appears from this part of the act of parliament, that the legislature had only in view the preventing of arrefts in civil actions, and it has no relation to crimes or any thing of a criminal nature; fo that the cafe of a foldier who is taken up for difobeying an order of juftices does not come within this part of the ftatute. But I have no difficulty in faying, if it were neceffary to have recourfe to it, that this caufe of commitment is of a criminal nature. The difobedience of an order of juftices is fo far criminal, that in almost every inftance the party disobeying may be indicted for it; this fhews it to be a crime. Therefore I am of opinion, that the court of feffions have adjudged rightly, and that we cannot release the defendant from his commitment under the mutiny act.-GROSE, Juftice. This is fo clear a cafe, that I think it unneceffary to add any thing to what has been already faid.-Rule difcharged.

V. The complaint and examination.

REX 7. ARCHER.

on the exami

558. Rex v. Beard, Hilary Term, 8. Will. 3. 2. Salk. 478. An order of -An order made by two juftices of the peace in Suffex, baftardy made adjudging Beard to be the father of a baftard child, nation of one which was quafhed, because it appeared thereby that the justice only, is examination of the woman was by one juftice only, bad. though the ordering part thereof was faid to be made by both; and Beard was bound over to the next feffions.

559. Rex v. Weft. Trinity, 3. Ann. 6. Mod. 180.-An The examinaorder of two juftices, reciting, that upon examination tion must be in the prefence of upon oath before one of them of the mother of a bastard both juftices. child, it did appear that A. was the father, therefore they adjudge him to be fo, and order him to pay, &c.--PER CURIAM. The examination is a judicial act, and ought to be by both: if indeed they be both prefent, and one only of them examines, it is fufficient.

560. Rex

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