whether the father or the mother hath a right to have the HULLAND child while under feven years of age, because the de- MALEEN, &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. may 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 pabaftardy bend be paid rifh against a bastard child) into court, with cofts. This 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 single 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 dainage by confent of parties. If therefore the defendant pays the plaintiff the whole ftated damages, what can he defire more?-GOULD, BLACKSTONE, and NARES, Justices, of the fame opinion.-Rule abfolute." indemnification, only for the 572. Kirk v. Strickland, Mich. Term, 21. Geo. 3. In debt upon ☛ Douglas, 449.-Motion, by CHAMBRE, for a rule to bond conthew caufe, why the defendant fhould not be difcharged ditioned for an 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 on 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 instances, 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 ftate that the child was born in the parish. 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 flood 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 against 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 bastard child, that it was born in that parish to which money was ordered to be paid. the Same refolution E. An order of a week, is bad for the small 574. Rex v. Perkaffe, Eafter, 20. Car. 2. 1. Sid. 363.maintenance to It was moved to quath an order of maintenance made at pay swopence the feffions at Huntingdon. The objection was, that it was unreasonable in refpect of the finalinefs 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 fhould 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 directUpon complaint to two juftices about a baftard 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, twelve years old, and ordering him to pay fo much a week to the parish, 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 pleafed, but it ought to have been, that he fhould allow fo much a week fo long as it should be chargeable to the parish. 1. Mod. 20. An order that ther shall pay 576. Rex v. Sherman, Eafter, 24. Car. 2. Vent, 210.the reputed fa Order of juftices quafhed, becaufe 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 W25 was ordered to pay feven fhillings a week until the child An order to fhould be able to get its living by working. But THE Pay "feven foil. lings a week" COURT held feven fhillings a week exceffive; and TwIS- is exceffive. DEN, Juftice, 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 fhould be able to get its living, as perhaps the father might chufe to take it away and maintain it himself, which he might do whenever he pleafed. The order was accordingly quashed. "till no longer good. 577. Rex v. Johnson, Mich. Term, 3. Jac. 2. Comb. 69. An order -An exception was taken to an order for keeping a baftard child, becaufe it made provifion for the main-chargeable" is tenance of the child" till it fhall 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. be made on affidavit only. 578. Rex v. Colbert, Eafter, 1. Will & Mary, Comb. 103. Oder of baf-An order made by the juftices of peace was quafhed, tardy cannot because it was made on an affidavit brought to them, 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 haf-To an order made by five juftices to maintain a baf- tardy by five tard child it was objected, that the complaint is not faid juftices for the to have been made by any parish, 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 should have been made by the two next: THIRDLY, that it does not appear that either of those was of the quorum. The firft and fecond exceptions were over-ruled, but the order was quafhed upon the last (a). (a) Sed vide ante, p. 1. and 2. in notis. 580. Rex v. Barebaker, Eafter 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 baftard child "tit attains the age of the age of four"fourteen years," was held bad; for the juftices have teen," is bad. no authority but to indemnify the parish, by obliging 1. Vent. 210. him to maintain the child "as long as it fhall be chargeable to the parish." 1. Mod. 20. Comb. 320, 1. Sid. 222. An order that " ther fhall pay to "the overfeers' is good. to pay 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 quath the order upon that exception, becaufe as before the institution 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 quathed, becaufe it was faid, "We the faid two juftices doth adjudge," inftead of da adjudge. An order may day weekly. 582. Rex v. Wefien, Trinity Term, 4. Ann. MSS.— direct payment Two juftices made an order upon one Weston, adjudging on a particular him to be the reputed father of a baftard child, and ordering 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 computing 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 fhould not be complete on that day. An order of itate that the child was born in the parish. 583. Rex v. Cuddington, Eafter Term, 9. Ann. MSS.—baltardy muft 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. S. C. Sett. & An order to Pay "till eight years old," is bad. 1. Seff. Caf. 41. Caf. of S. 64. 584. Smith's Cafe, Eafter, Poor's Sett. 64-To an order to pay one failling 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 fetticment, or a perfon may give him an eftate, or the father may take him. PER CURIAM. A remote poffibility! As to the 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 thall not be then fuffered; he (a) Vide the may fell him, or make away with him, as too often happens. (a) Cafe of New - land บ. Ofman, ante, page 406, pl. 537. An order to pay nionty dif. bu fea, with out laying by 585. Reg. v. Smith, Hilary Term, 11. Ann. MSS.-Two juftices make an order upon Smith, (as the reputed father of a batta child) to pay forty fhillings for money whom, is go.d. S. C. Sett, & Rem. 49. difburfed, difburfed, but does not fav by whom.-PER CURIAM: It is neceffarily intended, by the churchwardens. and fo much weekly," is 586. Reg. v. Odam, Mich. 12. Ann. Salk. 124. An To pay “nine order of baftardy was made for the defendant to pay nine pounds in grofs, pounds in grofs immediately upon fight of the order, and after that fo much weekly and it was held good; good. for by the ftatute the juftices are to make order for relief of the parish, and keeping of the child, by payment of money weekly, or other fuftentation, and this might be only indemnifying the parish for money laid out before the reputed father could be found. i. Vent. 121. baftard. 587. Rex v. England, Hilary Term, 8. Geo. Strange, 503. The order must -Two orders of baftardy were returned; one made by ftace the fex or two juftices, and an original order made at the feffions: name of the and both were quafhed; the firft, becaufe the fex of the child or its name were not mentioned in it; and the order of feffions was quafhed, because there being an order of two juftices before, the feflions had no jurifdiction but upon appeal. what parith 588. Rex v. Godfrey, Eafter Term, 10. Geo. Lord Raymond, The order must 1363.-An order made upon the defendant to maintain adjudge in a baftard child was quafhed, because, though in the com- child was born. plaint it was alledged that the child was born in the parifh of Hitchin in Hertfordshire, yet there was no ad- S. C. 1. Seff. judication by the juftices, nor any words of the juftices Set. and Rem from whence it could be collected in what parish the 366 child was born. Caf. 292. Stra. 437. 1. Bar. K. B. 326. 589. Rex v. Mitford, Mich. Term, 10. Geo. 1. Cafes An order de fcribing the Sett. 150.-Motion to quafh an order of baftardy, bechild as caufe not faid the child was chargeable to the parish, chargeable to but to an hamlet.-PER CURIAM. If it was an hamlet an bamics, is that maintained its own poor, it had been good; but this bad. not appearing, it was quafhed. Sec pl. 164. 590. Rex v. Street, Mich. Term. 1. Geo. 2. 2. Str. 788.— An order of An order of baftardy was made to pay fo much weekly till maintenance the child was nine years old, if it fhould fo long live and till the child is allowed to be a good order, because it cannot be intended able to provide for itself fooner. nine years old, is good. 591. Rex v. Childers, Eafter Term, 3. Geo. 2. 1. Par. An order reK. B. 326.-On a rule to fhew caufe why an order of two quiring the fajuftices for the maintenance of a baftard child, and an or- much to the pa ther to pay fo rish, is not a fufficient adjudication that the child was born in fuch path. der Ffa |