thority by Sessions, it seems, must be under such limitations as may give the party who is to be burdened by it, the same opportunity of resisting it, as he would have had (through the medium of a different process) by appeal from the order of two Justices; for it has been decided, that the reputed father shall not, by the proceedings being under the subsequent stat.* be deprived of all opportunity of resistance to the order. The order therefore cannot be made upon him unless he appear, or at least have Father must been summoned to appear. If the Justices in be summonSession, therefore, quash the order previously made by two Justices out of Session, and make an original order upon a person who has not been previously charged, if he be not present, they must either respite their proceedings to give him an opportunity of appearing at a future time, or the whole proceeding must begin de novo; for otherwise a party unjustly saddled with a burden by two Justices under the stat. of Eliz. would have the opportunity of discharging himself by appeal against that order; while another similarly burdened by an original order in Session, would be deprived ed. ab eodem ad of all relief; no appeal lying ab eodem ad No appeal eundem, or from one authority to another with eundem. powers exactly similar.‡ * 3 Car. 2, c. 4. † 1 Str. 575. 1 Bott. 508. ‡ 1 Sess. Ca. 179. 1 Bott. 486. Non-appear- But if the party being summoned do not ance taken for confes- appear, the charge may be taken pro confesso and the Justices proceed.* sion. Sessions cannot re order. But although Sessions may make an ori ginal order, they have no power by the stat. quire security for per- to make the father give security for the performance of formance of that order, as the single Justice has, before whom, the subject must have come in the first instance. And if the Justices in Session do so far exceed their authority as to make the order of filiation, and also one for the performance, the court of B. R. will confirm the former, and quash the latter.‡ No limitation of time. No order made in six No time is limited for these orders either by two Justices, or by the Quarter Sessions; but if the putative father; against whom the examining Justice granted his warrant in the first instance,§ run away to avoid it, and return at any distant period, and be taken, the order of filiation may then be made.|| But if the reputed father had been sent to weeks after prison for not finding sureties, and no order birth, and was made upon him in six weeks after the prison. birth of the child, he would be entitled to be liberated, under the words of the stat. father in * 2 Sess. Ca. 192. 1 Bott. 482. But † 6 Term R. 147.—See Pract. Expos. Title, BASTARDY. Sect. 3, notes. Ibid. § 6 Geo. 2, c. 31. || 1 Sess. Ca. 77.-1 Bott. 473. nevertheless, an order made upon him subsequently would be good, for the reasons before given. And if the mother die, or be married before Mother dying or marher being delivered of the child, or she ap- ried before delivery. pear not to have been with child, the father is entitled, by the stat. last referred to, to be released out of custody by one Justice, and discharged from his recognizance by the next Session.* And if the mother die immediately after Mother dying before delivery, and before any order of maintenance order of can have been made, her previous examination maintenance before the Justice will be sufficient evidence to proceed upon in making an order of filiation; for, as was said by Lord Kenyon, in a case of this kind (the other Judges concurring) "There is no doubt but that they may proceed to make the order, although the woman be dead; the examination having been taken before a Magistrate in the course of a judicial proceeding under 6 Geo. 2, c. 31, is certainly admissible evidence, and being admissible, and not contradicted by any other evidence, it seems to be conclusive."+ on merits. If two Justices make an order, and the Appeal upparty appeal to the Session, the order of such Session upon the merits will be final, Upon form only. Effect of and no subsequent Session can controvert it.* But if such Session quash it for want of form only, it is no order at-all, and the matter may be proceeded on de novo, or the Session may amend in point of form, and then proceed upon the merits.† And if the Session quash the order of acquittal up- Justices upon the merits, the defendant is thereby acquitted of the fact altogether.‡ on merits. Recent alteration, by stát. 49, Geo: 3. Recital. But now, by a recent statute,§ no incorsiderable alteration having been made in all the proceedings, as well those before the examining Justice, as by Sessions, the consequences are, of course, subject to variation, and the provisions of the statute itself are open to observation. It first recites that the provisions of 18 Eliz. are inadequate to the purpose of indemnifying parishes against the charges incurred in apprehending the reputed father, and obtaining the order of filiation, and then enacts, that in whatever way the abjudication be made, whether according to the stat. of Eliz. by two Justices, or according to the stat. of Charles, by the Court of Quarter Session, that the reputed father of a bastard child *Bulst. 255. 1 Bott. 506. † 5 Geo. 2, c. 19. 2 Str. 716. 1 Bott. 511. § 49 Geo. 3, c. 68. expences. shall be chargeable not only with the ex- Incidental pences incidental to the birth, but with those of his own apprehension, and those incurred by the filiation, not exceeding in the whole the sum of ten pounds, to be ascertained by oath before the Justices in, or out of, Session, making the order. s. 1. It then proceeds to give the like powers, as had been previously given by the former statutes, to Justices, to grant their warrants for the apprehension of reputed fathers, to compel them to give security for the indemnifying of their respective parishes, or to abide the order of Session, but with this addition; viz. "unless one such Justice shall Certificate certify in writing to such Session, that it had is not delibeen proved before him upon the oath of credible witness, that such woman had been delivered, or had been delivered within that women one vered, or not delivered a not month, or one an order has month previous to the day of the Session; or, unless two Justices of the county, &c. shall certify in writing to the Session, that an order of filiation had been already made on the person charged; or, of the child being dead, or other like sufficient reason why such order is not requisite to be made. In each of which cases firstly before mentioned, it shall be lawful for the Justices assembled at such General Quarter Sessions or General Sessions of the Peace, to respite such recognizance to the then next General Quarter Sessions been made. |