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kone 10 ct i.. ss. Libytes esIr V.238'-13 temm, 1237, a ne sa peaded fra de aia ecazce aci su por: hat most 0,"airerling Bushy, for 1231 sgoire taie r e che set dr cf tre n er in baxar,,,* bad March, aben te sa: Est becize ben marie atre Warer sons forte cia:reatie as aforesa doze preses: sas; erming A nizotery, at the preceding at trai tre sa i Richard Lew's do a so
y esto te oTerkers of be said parish w Wyroon549967 Ver of the poor of the forte disse being wees.yaleert week, parish of Pent'swed, in the said county, from benceforti until the said car.sizli dui, on the 2nd day of May laxt, gite die attain the age of seen years, if the said Notice to Richard lenie, late of Youghtrey, .chid shall so locz live, and coatinue to in the said county, labomer, of their in- be chargeable to the said parisă, such sum tention to apply to this Court for an order or sums of money as shall be weekly ernigam him, the said Richard Lewis, as the pended by or on bekaif of the said parish putative father of a certain female bastard for the maintenance ard support of the child, of which one Elizabeth Jones was said child during the time last aforesaid, then lately delivered, and which had then not exceeding the sum of ls. 44. in each lately beume chargeable to the said parish, and every week. But no part of the to reimburse the said parish for the main monies which shall be paid by the said tenance and support of the said child. And Richard Lewis in pursuance of this order the said overseers having now made such shall at any time be paid by the overseers application accordingly, and the said aforesaid to the said Elizabeth Jones, nor Richard Lewis being at the same time here be in any way applied to her maintenance present, and it being none duly proved to and support." tlvis Court, in the presence and hearing of An application had been made at the the said Richard Lewis, that the said child prior Sessions by the parish officers, for was, on the 25th day of October last, at an order; but the hearing was deferred the parish aforesaid, born a bastard of the by the Sessions, it appearing to the Court, body of the said Elizabeth Jones; that the that Richard Lewis had kept out of the said child, on the 6th day of March last, way, to prevent the service of the notice by the inability of its said mother to provide upon him. in the order then made, the for its maintenance, became, and from child was said to have been born on the thence hitherto hath been, and still is, 3rd of October last. On a former day in chargeable to the said parish ; and that he, this termthe said Richard Lewis, is the father of Jervis appeared to shew cause; butthe said child, and the evidence of the Busby was called upon by the Court, to said Elizabeth Joncs having been corrobo- state the objections to the order, who contended, that there were two principal ob- served for our consideration by the Sesjections— first, that there was no adjudi- sions.] cation that Lewis was the father of the Jervis, in support of the order.---As to child ; secondly, that it did not appear that the first objection, the order is made in the Sessions had jurisdiction. First, under the words of the 72nd section; and there the former law, it is clear that the order is this difference between the old and the would have been bad, for want of an ex- new law: under the former, the father press adjudication that he was the father was primarily liable; now, he is only The King v. Pitts (1). There is nothing liable, in case the mother is unable to in the new act, 4 & 5 Will. 4. c. 76. s. 72, maintain the child. In regard to the second which makes any difference, for no new point, which is a question of jurisdiction, form is given by that statute. The King the Court will make every reasonable inv. Kenworthy (2) shews, that an order is tendment to support the order of the Sesdefective without an adjudication. Se- sions—The Queen v. Toke (4). Here, there condly, there was no jurisdiction in the was no necessity to shew the settlement of Sessions to make this order, and the want the child; indeed, it might not have been of jurisdiction is apparent in two respects. known, or it may have been that the mother The one is, that it is not alleged that the was settled in some distant parish; and the child was settled in this parish. Under the parish officers are not bound to remove old law, the order always stated that the the child there. bastard was born in the parish applying [COLERIDGE, J. - Is this an order for the order, because that was the place adapted to the case of casual poor? It is of its settlement, whereas now, the place for the term of seven years, according of its settlement is that of its mother to your argument, if the child become section 71.
chargeable to several parishes, there must [PATTESON, J.-A child may become be several distinct orders.] chargeable to some parish many miles dis- If it be necessary to allege the settletant from that in which its mother is set. ment, the putative father will be at liberty tled : may not the former apply for the to contest it, and how can such a question order ?]
be properly tried between these parties? It is submitted not; the order ought to Suppose the case of the mother's settlement be obtained by the parish in which the being in dispute, how is the child to be child is settled. If the parish where it maintained in the meantime? becomes chargeable may make the appli- Busby, in reply.—However the Court cation, there may be a vast number of may be disposed to infer a jurisdiction, concurrent orders, requiring payment to still, all the material facts which are rebe made to different persons. That could quired to give it must be stated in the order not have been the intention of the legis. - The King v. Hulcott (5), The King v. lature. The other objection is, that it does Davis (6), Day v. King (7). Here a matenot appear that the order was made at the rial fact is omitted. next Sessions after it became chargeable.
Cur. adv. vult. [COLERIDGE, J.— There is nothing to shew that it was not made at the next LORD Denman, C.J.-There was a practicable Sessions. Was this objection case of The Queen v. Lewis, a question taken there? Many circumstances might as to the goodness of an order of affiliathere have explained the delay; and the tion, made by the Court of Quarter Sessions are to determine whether the ap- Sessions, which recited, that a child was plication is in time or not.]
born a bastard of Elizabeth Jones, and In The King v. Heath (3), this Court that the said child, on the 6th of May, by inquired into the circumstances of the reason of the inability of the mother to delay.
(4) 3 N. & P. 323 ; s.c. 7 Law J. Rep. (n.s.) [PATTESON, J.-There, a case was re- M.C. 74.
(5) 6 Term Rep. 587. (1) 2 Doug. 662.
(6) 5 B. & Ad. 551 ; 8. C. 3 Law J. Rep. (N.s.) (2) 1 B. & C. 711.
M.C. 29. 13) 5 Ad. & El. 343 ; s.c. 5 Law J. Rep. (N.s.) (7) 5 Ad. & El. 359 ; s.c. 5 Law J. Rep. (n.s.) M.C. 89.
provide for its maintenance, became, and
(THE QUEEN U. THB JUSTICES from thence hitherto has been, and still is,
OF CAMBRIDGESHIRE. chargeable to the said parish. The defen 1838. THE QUEEN V. THE JUSTICES dant was the father, and the mother's evi Dec. 1. OF SALOP. dence to prove him such had been corrobo
THE QUEEN V. THE JUSTICES rated; and the Court having heard all par
OF GLOUCESTERSHIRE. ties, and being satisfied that the said
Poor Law-4 & 5 Will. 4. c. 76. s. 73– Richard Lewis is really, in truth, the father of the child, proceeds to order him to re
Bastardy. imburse the parish the expenses already A majority of the overseers and churchincurred, and to make payments weekly wardens must sign the notice of an applicafor its future support. We disposed of the tion to the Sessions for an order of bastardy, objection, that the Court did not appear to under the 4 & 5 Will. 4. c. 76. s. 73. The be the next sessions during the argument. mere concurrence of the majority will not But, two others remained for considera suffice. tion: the first is founded on the authority Whether the service of such notice must of The King v. Pilts, which requires an be personal- quære. express adjudication by the Justices of the Whether, where the parish to which the Peace, of every fact material to give them bastard is chargeable is in a union, the applijurisdiction. The second is, although the cation should be made by the overseers, or the child is said to have become chargeable by guardians of such union-quære. reason of the mother's inability to maintain it, the particular facts from which the charge. In all these cases, applications had ability results are not found by the Court. been made to the respective sessions of The first objection is twofold: it is said, the counties of Cambridge, Salop, and it does not adjudge the defendant the Gloucester, for orders of maintenance, father, but only states the Court to be under the 4 & 5 Will. 4. c. 72. s. 72, upon satisfied of that fact. We think the words the putative fathers of bastards; but the of the statute an answer to this objection applications had been refused, because the However strictly it may be proper to em- notice required to be given by section 73, ploy regular legal terms in courts of jus- had been signed by the two overseers, tice, we think these are what the statute but not by either of the churchwardens, supplies for this purpose. But this satis. who were shewn to bave existed in each faction is not directly alleged, the order of the places on whose behalf the applicaonly saying, “the Court being satisfied, tions were made. In the Gloucestershire makes the order;"—we think this allegation case, the notice was signed by one of the also sufficient. The King v. Pilts, and the guardians elected for the parish of Wheatother cases, do not depend on the gramma- enhurst Union, in that county, and the notical form in which the facts are found; tice itself was served on the wife of the but they depend on such facts not being alleged putative father, which service was found at all: the examination of the cases objected to as insufficient. Rules nisi had makes this clear. The objection, that the been obtained for a mandamus in each case, circumstances which proved the charge which were argued byability, do not appear in the order, is also Archbold, in support of, and Gunning, removed, we think, by this statute. The against, the Cambridgeshire case, in MichCourt of Quarter Sessions must receive aelmas term, 1837; bycredit for having been convinced by proof Whateley, in support of, and Humfrey, of some such circumstances. It might be against, the Salop case, in last term; and by more convenient for parties to be apprised The Attorney General, in support of, and of the means by which they arrive at their W. J. Alexander and Cripps, against, the conclusion, but the act requires them to Gloucestershire case. arrive at that conclusion only, and does not It was contended on behalf of the rules, require the particulars to be set out; and, that the signature by the overseers was therefore, that rule will be
sufficient. The 4 & 5 Will. 4. c. 76. s. 72. Discharged. authorizes the overseers or guardians of
the parish, or guardians of any union, to
apply to the Sessions for an order of main this argument, as the notice is to be under tenance upon the putative father of a bas- the hands of the overseers. tard; and section 73 requires, that before It was admitted, that the signature by such application shall be heard, a notice the guardian of the union made no difshall be given under the hands of such ference, because the guardians can only overseers or guardians, to the person in act at their board—s. 38; and it was contended to be charged with being the father, tended, in The Gloucestershire case, that of such intended application. Now, the the service was sufficient. question is, whether the word “overseers” Against the rules it was argued, that a is not satisfied by the popular meaning of majority of the overseers must sign the that word, which excludes “the church- notice, according to the decisions of The wardens.” If so, the notices in all the King v. Beeston (2), Grindley v. Barker (3), cases would have been sufficient. On refer- The King v.the Justices of Warwickshire (4), ence to the interpretation clause, s. 109, the The King v. the Justices of Derbyshire (5), word “overseer is to be construed to mean, and The King v. Whitaker (6). Thereand include overseers of the poor, church fore, if the word “overseers" include the wardens, so far as they are authorized or church wardens, a majority have not signed, required by law to act in the management as it appeared in all the cases that there or relief of the poor, or in the collection were two churchwardens. But churchwaror distribution of the poor-rate, assistant dens are, by the statute, ex officiis overseers, overseer, or any other subordinate officer, and consequently necessarily included in whether paid or unpaid, in any parish or the term used by the legislature. Any union, who shall be employed therein in doubt upon that point is removed by the carrying this act or the laws for the relief interpretation section, which expressly of the poor into execution.” It appears mentions them. It is said, that they have then the term is only to include "church- nothing to do with the management of the wardens" when the matter relates to the poor, and the collection of the poor-rate. management of the poor, and the collec- Surely the maintenance of poor bastards tion or distribution of the poor-rate. The is an important part of the management of present application has nothing to do with the poor, and materially affects the amount the management of the poor or the poor- of the poor-rate. The statute 6 Geo. 2. rate, but is only to procure an indemnity for c. 31. authorized the application for the the parish against future expenses. It is order of affiliation to be made by one of impossible to apply the interpretation sec- the overseers; but it appears that the bastion, because a vast number of persons tardy bond was given to the church wardens must be introduced, a majority of whom and overseers of the poor-Burn's Just. will be required to sign the notice ; for in Bastardy. Therefore it cannot be said many parishes the management of the poor that the church wardens have nothing to is vested in a number of guardians; and do with the bastards of the parish. The the word "officer," mentioned in the defi. argument in The Gloucestershire case was, nition referred to, is also interpreted and that the service ought to have been perextends to a great many other individuals, sonal. This application may result in an and hence it would be impossible ever to attachment of a party's property, and give a valid notice. In The King v. the therefore the case is analogous to the cases North Riding of Yorkshire (1), this point of attachment in this court, where personal was argued, though it did not become service is always required. In this act necessary to be decided. But although it several modes of service are prescribed must be conceded, that a majority of the expressly by the legislature, where peroverseers must concur in the notice, it sonal service is excused, as in sections 90 may be fairly urged, that a concurrence is and 106, but this is not one of them. It was enough, and that they need not actually also urged, that the application ought, in sign the notice; and there was sufficient (2) 3 Term Rep. 595. ground for presuming the concurrence of (3) 1 Bos. & Pul. 229. a majority here.
(4) 6 Ad. & El. 873 ; s. c. 6 Law J. Rep. (n.s.) The Court expressed their dissent from
(5) 6 Ad. & El. 885 ; s. c. 6 Law J. Rep. (N.s.) (1) 6 Ad. & El. 863 ; s.c. 6 Law J. Rop. (N.s.) M.C. 140. M.C. 110.
(6) 9 B. & C.648 ; s.c.7 Law J. Rep. K.B.332. fact, to be made by the guardians of the Amendment Act, which enumerates all union, where the parish in which the bas- such persons as shall be meant and intard is born is situate in a union, and not cluded in the term "overseers," whenever by the overseers at all. The application it occurs in the act: those persons are, is clearly one of discretion, and all discre- overseers of the poor-church wardens, so tionary acts are to be performed by the far as they are authorized or required by board of guardians, and the overseers are law to act in the management or relief of to act under that board-sections 38, 54, the poor, or in the collection or distribu95. The words of the 73rd section will tion of the poor-rate-assistant overseers, therefore apply to two sets of circum- and all subordinate officers, employed in stances, namely, where there is a union, the relief of the poor. It is argued, the and where not. In the latter, the over- legislature could not intend the majority seers, in the former the guardians must of these individuals, as a fluctuating body, make the application
to concur in giving a notice. The arguCur. adv. vult. ment goes rather to shew the inconvenience
of requiring the majority to act, than to LORD DENMAN, C.J. now delivered the determine whether a church warden is an judgment of the Court.-There was an overseer, the real question in the case. application for a mandamus to the Justices But we apprehend an interpretation clause of the Peace for the counties of Cambridge, is not to receive so rigid a construction, Salop, and Gloucester, on three separate that is, it is not to be taken as substituting occasions.
one set of words for another, nor of strictly The application in each case was for a defining what the meaning of a word must mandamus to enter continuances and hear be under all circumstances; we rather an application in bastardy, the Court of think it merely declares what persons may Quarter Sessions having refused to enter- be comprehended within that term, when tain it for the same objection in all the the circumstances require that they should. cases-the objection being to the notice We cannot, however, refrain from expressgiven to the putative father, namely, that ing a serious doubt, whether the interit was not signed by either churchwarden, pretation clauses, of so extensive a range, but only by the two overseers appointed may not rather embarrass the Courts in by the Justices.
their decisions, than afford that assistance The 73rd section of the Poor Law contemplated; for the principles on which Amendment Act contains an express pro they are themselves to be interpreted may viso, “that no such application shall be become matter of controversy, and the heard at the Sessions, unless fourteen days application of them to particular cases may notice shall have been given under the give rise to endless doubts. hands of such overseers and guardians ;" In the present instance, we are conand reference is made to the preceding vinced the 109th section did not mean to clause, which empowers the overseers or make it necessary for the notice under the guardians of the parish likely to be bur. 73rd to be signed by others than are rethened, to apply to the Sessions for relief. quired by the 72nd, which merely requires It is admitted, that of those who are by that the majority of the overseers, in the law required to give the notice, the majo- ordinary sense of the word, should concur rity must appear to have concurred in it in signing it; we mean, of course, the subby signing the notice itself; and the sta- stantial householders, two at least of the tute of the 43rd of Elizabeth constitutes the number to be appointed by the Justices, churchwardens, overseers. But the main whom the 43rd of Elizabeth associated tenance of bastard children is said not to with the church wardens, declaring all to be a matter connected with the relief of be overseers of the poor; a notice, therethe poor; but that is on the face of it un fore, signed by the former class alone is tenable, as the inability of the mother to bad. The Sessions were justified in refussupport her child, and the consequent ne ing to proceed on such notice; and these cessity of calling on the parish to do so, several rules for writs of mandamus must are the very foundation of the proceeding. be discharged. A difficulty is, however, raised from the
Rules discharged. interpretation clause of the Poor Law