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tween the mas
ter and appren
The statute under consideration enacts that, "if any master shall misuse or evil entreat his apprentice, or tices by 5 Eliz. the said apprentice shall have any just cause to complain;† or the apprentice do not do his duty to his master, then the said master, or apprentice, being aggrieved, and having cause to complain, shall repair unto one justice of the county, or to the mayor, or other head officer of the city, town corporate, or market town, or other place where the master dwelleth, who shall by his wisdom and discretion, take such order and direction between the master and his apprentice as the equity of the cause shall require; and if for want of good conformity in the master the said justice (or head officer) cannot compound and agree the matter, he shall take bond of the said master to appear at the next sessions; § and on his appearance and hearing of the matter there, if it be thought meet to discharge the said apprentice, then the justices, or four of them at the least (1 Q.), or the said mayor, or other head officer, with the consent of three other of his brethren, or men of best reputation in such city, town corporate, or market town, shall have power, in writing under their hands and seals, || to pronounce
The word such refers to the trades enumerated in the preceding sections of the statute, and it was long a doubt, whether it gave jurisdiction to the justices over the apprentices to masters in any other trades; but this question has been set at rest. 2 Lord Raym. 1410.-1. Str. 663. -1 Bott. 578.
+ Unreasonable bodily correction, scarcity of food, and such like personal ill-treatment, present sufficient reasons for complaint on the part of an apprentice; but it has been decided, that these words extend also to neglect of instruction. R. v. Amies, 1 Bott. 574.
These words are only directory. If complied with, the question may then come before the court by appeal.
§ Without these previous steps an application may be made in the first instance to the justices in general sessions, and they have an original jurisdiction over it. R. v. Gill, 1 Str. 143. R. v. Davis, 2 Str.
|| It is bad, if it be not under hands and seals. R. v. Cately, Carth. 198.-Salk. 479.
and declare that they have discharged the said apprentice of his apprenticehood and the cause thereof;* and the said writing being enrolled by the clerk of the peace, or town clerk, amongst the records, shall be a sufficient discharge for the apprentice against his master, his executors, and administrators.† And if the default shall be found to be in the apprentice, then the said justices, or the said mayor, or other head officer, with the assistance aforesaid, shall cause such due correction and punishment to be administered unto him, as by their wisdom and discretion shall be thought meet. § 35. ‡
The filiation of bastards, in the first instance, belonging Bastardy. to justices out of session, and all questions touching their settlements appertaining to that portion of this chapter which treats of appeals, all that now presents itself to be discussed, respects the orders to be made for their maintenance, by the court of quarter session.
It being now settled beyond further controversy that
And even if the master be a freeman of the city of London, and dwell there, and the indentures were enrolled in London, yet the sessions of the county of Middlesex have jurisdiction to discharge, notwithstanding the savings of the privileges of the city of London and Westminster, by sect. 40 of this very statute. R. v. Collingbourne, 2 Str. 663.
↑ And that even though the master did not appear, being bound over, or summoned so to do.-Ditton's case, 2 Salk. 490. It has been much doubted whether the justices have a power to order any return of premium. The most decided case on the subject says they have not. R. v. Vandeleer, 1 Str. 69.-But the universal practice is to order such return when it appears reasonable, and it is justified by some authorities. Du Hamel's case, 2 Skin. 108.-R. v. Johnson, 1 Salk. 67.-2 Bac. Abridg.-1 Bott. 574.-And the necessity of such a power was so clear, that in discharges by justices out of sessions it is given by 32 Geo. 3.
These words have been construed to give the sessions power of correction by imprisonment, or other corporal punishment in the house of correction. 1 Saund. 315.-1 Bott. 569.
Proceeding before two jus
tices out of session.
sessions have the power to make original orders of bastardy, the subject may either come before them on an application after that mode, or by way of appeal from the order of two justices. In either case a few general rules are necessary to be noticed, and some which are common to both pro
If the proceedings have been according to the statute of Elizabeth,+ before two justices out of session, and be brought before the court of quarter session by appeal, they may not only quash the order of the two justices, but they may make an original order on another person. But this exercise of original authority 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 statute,§ be deFather must be prived of all opportunity of resistance to the order. The order therefore cannot be made upon him unless he appear, or at least have been summoned to appear. If the justices in session, 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 statute of Elizabeth 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 of all relief; no appeal
See Pract. Expos. title BASTARDS, sect. 3. 1 Bott. 509. 49 Geo. 3. c. 68. by which statute this power of making original orders is fully recognized.
lying ab eodem ad eundem, or from one authority to another No appeal ab with powers exactly similar.
codem ad eundem.
ance taken for confession.
But if the party having been summoned do not appear, Non-appearthe charge may be taken pro confesso, and the justices proceed.†
But although sessions may make an original order, they Sessions cannot have no power by the statute to make the father give secu- requite security rity for the performance of that order, as the single justice ance of order. 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 time is limited for these orders either by two justices, No limitation 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 prison for not No order made finding sureties, and no order was made upon him in six after birth, and .weeks after the birth of the child, he would be entitled to be father in priliberated, under the words of the statute. ++ But nevertheless, an order made upon him subsequently would be good, for the reasons before given.
And if the mother die, or be married before her being Mother dying delivered of the child, or she appear not to have been with or married be child, the father is entitled, by the statute 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 delivery, and Mother dying before any order of maintenance can have been made, her before order of previous examination before the justice will be sufficient evidence to proceed upon in making an order of filiation;
1 Sess. Car. 179.-1 Bott. 486. ↑ 2 Sess. Ca. 192.-1 Bott. 482.
6 Term R. 147.-See Pract. Expos. title Bastardy, sect. 3, notes.
6 Geo. 2. c. 31.
tt 6 Geo. 2. c. 31. s. 3.
1 Sess. Ca. 77.-1 Bott, 473.
‡‡ Id. s. 2.
Appeal upon merits.
Upon form only.
Effect of acquittal upon merits.
Recent alteration, by stat. 49 Geo. 3.
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." *
If two justices make an order, and the party appeal to the session, the order of such session upon the merits will be final, 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 justices upon the merits, the defendant is thereby acquitted of the fact altogether. §
But now, by a recent statute, || no inconsiderable alteration having been made in all the proceedings, as well those before the examining justice, as by sessions, the consequences arc, 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 adjudication be made, whether according to the statute of Eliz. by two justices, or according to the statute of Charles, by the court of quarter session, that the reputed father of a bastard child shall be chargeable not only with the expences incidental to the birth, but with those of his own apprehension, and those incurred by the filiation, not exceeding the whole sum of ten pounds, to be
* 5 Term. R. 372.
+ Bulst. 255.-1 Bott. 506.
§ 2 Str. 716.-1 Bott. 511.