ADULTERY, FORNICATION, AND BASTARDY. Act of February 10, 1819-January 1, 1820. R. C. ch. 239. chargeable(e) to the county, they shall and may, in their discretion, take order for keeping such bastard child, by charging the father with the payment of money for the maintenance of such child, in such manner and in such proportions as they shall think meet and convenient, and for such time as such child is likely to become chargeable to the county, and no longer.(ƒ) And together at a time, when, in the order of nature, if sexual intercourse had taken place, he might have been the father of the child, the presumption is, that if it did take place, and can only be negatived by disproving that fact by evidence of circumstances affording irresistible presumption that it could not have taken place, and not by mere evidence of circumstances, affording a balance of probabilities against it. See the unanimous answers of the judges, delivered by Sir James Mansfield, C. J. Č. P. 4 July, 1811, to the question propounded in the case of the Banbury claim of peerage, 25 Hansard's Parl. Deb. 98, 99; 1 Burns's Just. p. 303-4, ed. Lond. 24th, and 1 Sim. and Stuart, 153; Cross v. Cross, 3 Paige, 139; Bury v. Phillpot, 2 Maylne and Keene, 349. Every child born in wedlock, the husband and wife being in England, and not separated by any sentence of divorce, is presumed to be legitimate; but this presumption may be repelled by proof of such facts as satisfy the jury that no sexual intercourse took place between the husband and wife at a time when the husband could, by possibility, be the father of the child; and the jury, before they can find against the legitimacy, must be convinced that no such sexual intercourse took place, by irresistible evidence, and not by a mere balance of probabilities. If such intercourse did take place, the adultery of the wife is immaterial; and if there was an opportunity of sexual intercourse between the husband and wife, the law presumes that such intercourse did take place, unless the contrary be satisfactorily proved. Morris v. Davis and al. 3 Carr. and Payne, 215; Cor. B. Vaughan. If husband and wife are in such a situation that sexual intercourse might have taken place, the law presumes that it did take place, unless such facts are proved as satisfy the jury beyond all doubt that no such intercourse did take place; and, therefore, unless such facts are proved, a child born of the wife is legiti mate, if the husband and wife were in such a situation, that sexual intercourse might have taken place between them, at a time when, by the course of nature, the husband could have been the father of the child. S. C. on a third trial. Cor. Gaselee, J. 3 Carr. and Payne, 427, (c. 3.) If a husband have access, and others at the same period have a criminal intimacy with his wife, and she have a child, such child is legitimate; but if the husband and wife be living separately, and the wife is notoriously living in adultery, a child born under such circumstances, would be illegi- See Stegall et al. v. Stegall's adm'r et al. 2 Brock. R. 256. Neither husband nor wife can be examined for the purpose of proving non-access during marriage. Nor can either be examined as to any collateral fact, for the purpose of As, that the husband proving non-access. at a particular time, lived at a distance from his wife, and cohabited with another woman. Denman, C. J. in opinion of court, said, "we adhere to the old rule of law, without any doubt. That parties shall not be permitted after marriage to say they had no connection, &c. The King v. The inhabitants of Sourton, 5 Adolp. and Ellis, (T. T. 1836,) 180; 31 Eng. C. L. R. 312. This case is very like that in 6 Binney, 283, Shepherd. (e) This act relates only to cases in which the bastard is chargeable, or is likely to become chargeable to the county, and not to cases in which the child is neither actually sustained by the county, nor any contract entered into for that purpose. The power of the court is only coeval with the commencement of the charge, and does not precede it; therefore, where a bastard child has never been on the parish list, but has been supported independently of the overseers of the poor, the court cannot enter a retrospective judgment, that the father shall pay for its past maintenance, but only from the time the child became chargeable, either actually, or by the overseers incurring obligations on account of its maintenance. M'Fall v. Overseers of the poor of Augusta, 3 Munf. 495; Comb. 30; Rex v. Mathews, 2 Salk. 275; 4 M. and S. 559. (f) See The King v. Buckall, 1 Barnard B. These cases specify in the R. 261; Rex v. Street, 2 Str. 789; 1 Barnard B. R. 31, S. C. order until nine and twelve years, without adding, if they shall so long become chargeable; which was a ground of objection, as per chance, they might cease to be a charge before these periods. But the court said, that the very late cases have all allowed these orders to be good; for there is no reasonaThe order ble intendment, that a bastard will be able to provide for himself sooner. was confirmed notwithstanding. Barahaker, 1 Salk. 112, 478. Rex v. Act of February 10, 1819-January 1, 1820. R. C. ch. 239. the father of such child shall enter into a recognizance, with sufficient security, before the said court, in such sum as the said court, in their discretion, shall think fit, payable to the governor of this commonwealth, for the time being, and his successors, to observe and perform such order or orders of the court as aforesaid. And, if the father, charged with the maintenance of such bastard child as aforesaid, shall make default, and not pay the money so as aforesaid charged upon him by order of the said court, to the overseers of the poor, for the maintenance of such child, the court, before whom the recognizance was entered into, shall, from time to time, upon motion of the overseers of the poor, or any one of them, enter up judgment and award execution for the money, in such order or orders mentioned, as the same shall become due, against the said father and his securities, their executors or administrators :(g) Provided, Ten days notice to be given to the parties against whom such motion is made, before making thereof. Nov. 1769, c. 27, 8 Stat. Larg. 374; 1792, c. 102, R. C.; 1805, c. 50, ed. 1808; see Feb. 1727, c. 7, § 13, 4 Stat. Larg. 213. 3. 32. If the father of such child shall refuse to enter into recognizance as aforesaid, such father shall be committed by the said court to the common jail of the county, there to remain without bail or mainprize, until he shall enter into such recognizance as aforesaid, or until he shall discharge himself, by taking the oath of an insolvent debtor, and delivering in a schedule of his estate, in manner directed by the laws for debtors in execution, (which estate shall, by order of the court, be applied towards indemnifying the county,) or until the overseers of the poor shall consent to his discharge. Ibid. 4. 33. If any single white woman, residing within the limits of any corporate town, shall be delivered of a bastard child, which shall be chargeable, or likely to become chargeable to such town, and shall, upon examination before any magistrate of the corporation, to be taken in writing, upon oath, charge any person, not being a servant, with being the father of such bastard child, it shall be lawful for any justice of the peace for the county, or magistrate of the corporation wherein the person so charged shall be resident or inhabitant, upon application made by any person residing in the corporation wherein the said child shall be born, to issue his warrant for the immediate apprehending the person as aforesaid, and for bringing him before such justice or magistrate; and the justice or magistrate before whom such person shall be brought, is hereby authorized and required to commit the person so charged as aforesaid to the common jail of his county or corporation, unless he shall enter into a recognizance, with sufficient security, in a sum not less than fifty nor more than two hundred dollars, upon condition to appear at the next court to be held for his county or corporation, and to abide such order or orders as shall be made by such court. And if, upon the circumstances of the case, the court shall adjudge the person so charged to be the father of such bastard child, and that such child is likely to become chargeable to the town in which the mother is resident, they shall and may, in their discretion, take order for keeping such bastard child, by charging the father with payment of money for the maintenance of such child, in such manner and in such proportions as they shall deem meet and convenient, and for such time as such child is likely to be chargeable to such town, and no longer. And the father of such child shall enter into recognizance, with sufficient security, in such sum as the said court, in its discretion, shall think fit, payable to the governor of this commonwealth, for the time being, and his successors, to perform such order or orders of the court aforesaid. And, if the father, charged with the maintenance of (g) As to the power of the putative father | maintain it himself. See Newland v. Osto take his bastard child from the parish, and man, 1 Bott. 466. Act of February 10, 1819-January 1, 1820. R. C. ch. 239. such bastard child, shall make default, and not pay the money so as aforesaid charged upon him by the order of the said court, to the serjeant of the corporation, to be applied under the directions of the court, or of the overseers of the poor of the corporation, to the maintenance of such child, the court before whom the recognizance was entered into, shall, from time to time, on motion of the serjeant of the corporation, or the overseers of the poor thereof, enter up judgment and award execution for the money, in such order or orders mentioned, as the same shall become due, against the said father, and his security or securities, their executors or administrators: Provided, Ten days notice be given to the parties against whom such motion is made, before the making thereof. And if the father of such child shall refuse to enter into a recognizance as aforesaid, such father shall be committed by the said court to the common jail of the county or corporation, there to remain, without bail or mainprize, until he shall enter into such recognizance, or until he shall discharge himself, by taking the oath of an insolvent debtor, and delivering in a schedule of his estate, in manner directed by the laws for debtors in execution, (which estate shall, by order of the court, be applied towards indemnifying the town,) or until the court of the corporation shall consent to his discharge. Dec. 19, 1805, c. 11, Sess. Acts, p. 9; c. 66, ed. 1808. 5. § 34. Provided always, That it shall not be lawful for any magistrate of a county or corporation to send for any woman whatsoever, before she shall be delivered, in order to her being examined concerning her pregnancy, or to compel her to answer any questions relating thereto, before her delivery.(h) Nov. 1769, c. 27, 8 Stat. Larg. 376; 1792, c. 102, R. C.(i) (h) 1 Stra. 612; Rex v. Chandler, 8 Mod. 336; 2 L. Ray. 1368. (i) The mother of an infant illegitimate child is entitled to the custody of the child in preference to the father, though from his circumstances he may be better able to educate it. Ex parte Ann Knee, 4 B. and P. 148. And if the putative father of a bastard obtain the possession of the child from its mother by fraud, the court will order it to be restored to its mother. The King v. Soper, 5T. R. 278; Rex v. Moseley, 5 East. 224, note (a). See Strangeways v. Robinson et al. 4 Taunt. 498. See Ex parte Skinner, an infant, 9 J. B. Moore, 278; 17 Eng. C. L. R. 122. The legal custody of legitimate children, is that of the father. See The King v. Greenhill, 4 Adol. and Ellis, 624; 31 Eng. C. L. R. 153, and the authorities there cited. Voluntary bonds, good. See Strangeways v. Robinson et al. 4 Taunt. 498; Middleham v. Bellerby, 1 Maul. & Selw. 310. Act of February 25, 1819-January 1, 1820. R. C. ch. 94. - 2 1. 1. When any alien shall heretofore have purchased, or contracted to purchase, any lands or tenements within this commonwealth, or shall hereafter purchase, or contract to purchase, any such lands or tenements, and, before the same shall have been escheated to the commonwealth by an office found, such alien shall have become a citizen of the United States in pursuance of the laws thereof, in every such case, all the right, title and interest, in such lands and tenements, which shall have accrued to the commonwealth, or to the Act of February 25, 1819-January 1, 1820. R. C. ch. 94. president and directors of the literary fund, by reason of the alienage of such purchaser, shall be and the same is hereby released to him, his heirs and assigns forever. Feb. 8, 1813, c. 25. 2.2. When any alien residing within the United States, holding or claiming title to any lands or tenements, not heretofore escheated to the commonwealth by an office found, shall have bona fide sold(b) or demised the same, or shall have died, testate or intestate, seized or possessed thereof, or claiming title thereto, and when any alien, residing within the United States, shall hereafter hold or claim title to any such lands or tenements, and, before any proceeding shall be instituted by the escheator, for the purpose of escheating the same to the commonwealth, shall bona fide sell or demise the same, or die, testate or intestate, seized or possessed thereof, or claiming title thereto; in every such case, the purchaser from such alien, or his lessee, heir or devisee, being a citizen of the United States, shall hold and enjoy such lands or tenements quit and discharged of all right, title or claim, which shall have accrued to the commonwealth, or to the president and directors of the literary fund, by reason of the alienage of the person so having sold, demised or died. Such lands or tenements shall be subject to the debts of the alien, in the same manner as if he had been a citizen. Ibid. [How Aliens may be Naturalized; See tit. CITIZENS, NATURALIZATION, &C.] (b) Robertson v. Miller et al. 1 Brock. R. 466, 474. See on this subject, Acts, Oct. 1705, c. 45, § 6, 3 Stat. Larg. p. 435; Nov. 1766, c. 33, 8 Stat. Larg. 250. For a general view of the rights and disabilities of aliens, anterior to 8th Feb. 1813; see The Commonwealth v. The ex'r and devisees of Martin, 5 Munf. 117-160; The Commonwealth v. Selden, 5 Munf. 160-166; Craig v. Leslie, 3 Wheat. 563-591. A sale and conveyance of land by a trustee, cannot be set aside on the ground, that he was an alien, when the deed was made to him, and when he conveyed to the purchaser. Ferguson v. Franklins, 6 Munf. 305; see act of Feb. 8, 1813, c. 25, § 2. See Hughes v. Edwards, 9 Wheat. 489, 496-7. An alien mortgagee, has a right to come into a court of equity, and have the property, pledged for the payment of the debt, sold to raise the money. His demand, is merely a personal one, the debt being considered as the principal, and the land as an incident. And see Christy v. Christy, 6 Paige, 170. Land is purchased for or by an alien, and paid for by him, or with money furnished by him, but the conveyance is taken to a citizen on express trust that he shall hold for the benefit of the alien and his heirs: Held, that this trust estate of the alien can only be so acquired by him for the commonwealth and a court of equity will compel the trustee to execute the trust for her benefit. And equity following the law in relation to escheats and legal estates-will not give the profits received by the alien, or any other person, anterior to the decree. Hubbard v. Goodwin, 3 Leigh 492; see Christy v. Christy, 6 Paige's Ch. R. 170. All British subjects became aliens to this country on the declaration of independence. The Com. v. Bristow, 6 Call, 60. An alien enemy, as well as an alien friend, is capable of taking lands by devise; and an alien subject of G. Britain, to whom a devise of lands was made in 1781, could, by the treaty of 1794 between the U. States and G. Britain, hold and alien the lands so devised to him. Stephen's heirs v. Swann, 9 Leigh 404. Act of February 18, 1819-January 1, 1820. R. C. ch. 108. 1. § 25. Every orphan, (1) who hath no estate, or not sufficient for a maintenance out of its profits, shall, by order of the court of the county or corporation(a) in which he or she resides, be bound apprentice by the overseers of the poor, until the age of twenty-one years, if a boy, or of eighteen years, if a girl, to some master or mistress, who shall covenant to teach the apprentice some art, trade or business, (b) to be particularized in the indenture; and also (except in the case of black and mulatto orphans,) reading and writing, and common arithmetic, including the rule of three, and to pay him or her twelve dollars at the expiration of the time.(c) [And no indentures entered into by the overseers of the poor, without the authority of the court, and an order made to that effect, shall be of any force or validity whatever. Acts 1839, ch. 84, 3, p. 52.] See Acts Oct. 1646, 1 Stat. Larg. 336; Dec. 1656, Ib. 416; Oct. 1705, 3 Stat. Larg. 375; Aug. 1736, 4 Stat. Larg. 482; Oct. 1748, 5 Stat. Larg. 452, and 1785, c. 86, 12 Stat. Larg. 194; 1792, c. 95, R. C.; 1805, c. 60, $ 5, ed. 1808. 2. 26. The courts of each county and corporation, respectively, shall have full power, at their discretion, to direct the overseers of the poor to covenant with the master or mistress of any apprentice bound to serve under their order, that a sum not exceeding twenty dollars shall be paid to such apprentice, instead of the aforesaid sum of twelve dollars. 1794, c. 172, R. Č. 3. 25. The indentures of such apprentices shall be filed in the office of the clerk of the county or corporation [within six months from the date of the order of court, and the day on which they were delivered to the clerk shall be (1) In the case of free persons of colour, a different provision has been made. See act of April 6, 1839, c. 84, p. 51, and post. § 11. (a) The county, city and borough courts of this commonwealth, exclusively, have the power to make orders for binding out poor orphans as apprentices, and to hear and determine in a summary way, all complaints of apprentices against their masters, &c., and to make orders for removing them, when it shall be necessary; from which no appeal lies. Coopers v. Saunders et al. 1 H. & M. 413, 423. In the binding of an infant apprentice by the overseers of the poor it is not necessary that the infant should join in the indenture. See The Com. ex rel. Crispin v. Jones, 3 Serg. & Raw. 158. (b) The words of the act of Oct. 1705, c. 33, 14, 3 Stat. Larg. 375, are "some handicraft trade, or mariner;"-of the act of Aug. 1736, c. 4, 4 Stat. Larg. 482, "trade, art, mystery, or occupation;"-of 1785, c. 86,"art, trade or business.' The binding an apprentice carries with it the idea of binding to learn some trade or mystery. Household service in a city, town, or village, may perhaps be said to be a sort of trade or mystery, [the words of the Penn. act, are "art, mystery, occupation or labour,"] which may require an apprenticeship. For it will require time and instruction to make an expert waiter, and one so instructed will receive wages ten times above that of an untaught servant. Brackenridge, J. in The Com. v. Van Lear, 1 Serg. and Raw. 252. (c) For a breach of the covenants on the part of the master, the overseers have no right to sue. Poindexter v. Wilton et al. 3 Munf. 183; see Winstone v. Linn, 1 Barn. and Cress. 460; Hughes v. Humphreys et al. 6 Barn. and Cress. 680. Covenant will not lie in the name of an apprentice on an indenture of apprenticeship, entered into by the overseers of poor without any previous order of the court for binding out the apprentice; such indenture is not a statutory deed; and, therefore, covenant can only be maintained on it, in the name of the overseers who are parties to it. Bullock v. Sebrell, 6 Leigh 560. |