The King against Luffe
| Jurisdiction | England & Wales |
| Judgment Date | 31 January 1807 |
| Date | 31 January 1807 |
| Court | Court of the King's Bench |
English Reports Citation: 103 E.R. 316
IN THE COURT OF KING'S BENCH.
See Morris v. Davies, 1837, 5 Cl. & Fin. 234; R. v. Collingwood, 1848, 12 Q. B. 686; R. v. Pilkington, 1853, 2 El. & Bl. 552; Turncock v. Turncock, 1867, 36 L. J. P. & M. 86.
316 THE KING V. LUFFE 8 EAST, 193. [193] the king against luffe. Saturday, Jan. 31st, 1807. 1. An order of bastardy stated to be made upon the oath of the wife, as otherwise, is good ; for it will be presumed that the non-access of the husband was proved by competent witnesses on oath other than the wife ; or if proved by her also, that the judgment of the justices was founded on the other proof. 2. Such an order filiating the child of a married woman is good, though it only states that such child was likely to become chargeable; which are the words of the stat. 6 Geo. 2, c. 31, s. 1, as applied to the bastards of single women : 'for upon that statute, as well as the st. 18 Eliz., e. 3, which has the words born out of lawful matrimony, the only question is whether the child be by law a bastard. 3. Non-access of the husband need not be proved during the whole period of the wife's pregnancy : if is sufficient if the circumstances of the case show a natural impossibility that the husband could be the father; as where he had access only a fortnight before the birth. [See Morris v. Davies, 1837, 5 01. & Fin. 234 ; B. v. Gollingivood, 1848, 12 Q. B. 686 ; R. v. Pillcington, 1853, 2 El. & Bl. 552; Twrnock v, TurnocJc, 1867, 36 L. J. P. & M. 86.] An order of bastardy returned into this Court by certiorari was as follows. Suffolk to wit.-The order of S. K. and J. H. two of H. M. Justices of the Peace, &c. made the -,0th of August 1806, concerning a male bastard child lately born in the parish of Benhall (in the said county) on the body of Mary Taylor, wife of Jonathan Taylor, late of B. aforesaid, mariner. Whereas it appeareth unto us, the said justices, upon the oath of the said Mary Taylor, as otherwise, that her husband hath been beyond the seas, and that she did not see her said husband or had access to him from the 9th of April 1804, until the 29th of June last past: and whereas it hath also appeared unto us, the said justices, as well upon the complaint of the churchwardens, &c. of Benhall, as upon the oath of the said Mary Taylor, that she, the said Mary Taylor, on or about the 13th of July now last past, was delivered of a male bastard child in the said parish of Benhall, and that the said male bastard child is likely to become chargeable to the said parish of Benhall: and further, that H. Luffe, of Benhall, &c. did beget the said bastard child on the body of her, the said Mary Taylor : and whereas the said H. Luffe hath this day appeared before us, but hath not shewn any cause why he should not be adjudged the reputed father of the said bastard child : we there-lore, upon examination of the cause and circumstances of the premises, as well upon 1194] the oath of the said Mary Taylor, as otherwise, do hereby adjudge him, the said tL Luffe, to be the reputed father of the said bastard child ; and do also adjudge that the said bastard child was born in the said parish of Benhall. And thereupon we do order, as well for the better relief of the said parish of B. as for the sustentation and relief of the said bastard child, that the said H. Luffe shall forthwith, upon notice of this our order, pay to the said churchwardens, &c. of the said parish of B. 21. 3s. 6d. for and towards the lying in of the said Mary Taylor, and the maintenance of the said bastard child, to the time of making this our order. And we do also hereby further order that the said H. Luffe shall likewise pay to the churchwardens, &c. of the parish ot B for the time being, 3s. weekly, &c. for the maintenance, &e. of the said bastard child, so long time as the said bastard child shall be chargeable to the said parish to B; And we do further order that the said Mary Taylor shall also pay, or cause to be paid to the said churchwardens, &c. of the said parish of B. for the time being, Is. 6d. weekly, so long as the said bastard child shall be chargeable to the said parish oi o, in case she should not nurse and take care of the said child herself." , (Signed and sealed by the justices.) The defendant appealed against the order to the Quarter Sessions, by which Court it was confirmed. Three objections were taken to this order (a); 1st, that the wife was admitted to prove the non-access of her husband. 2dly, that this being the child of a married woman the justices had no jurisdiction to make an order of filiation, unless the child appeared to have been actually [195] chargeable, and not merely likely to become so. 3dly, that ^ the non-access of the husband was not proved during the whole time of the wife's pregnancy; which was necessary to bastardize the issue. (a) The presence of the defendant in Court was waved by consent. Vide Bex v Mathews, Salk. 475. 8 EAST, 196, THE KING V. LUFFE 317 Storks shewed cause against the rule for quashing the order. As to the first objection; the non-access of the husband does not rest upon the evidence of the wife alone; nor does it even necessarily appear that she gave any evidence of that fact. The words of the order are that it appeared to the justices, upon the oath of the said Mary Taylor, as otherwise, (by which must be understood other legal proof), that her husband had been beyond sea, and that she had not seen him, or had access to him, &c. And the words as otherwise occur again in the subsequent part of the order. It was long ago decided in Pendrell v. Pendrell(a)1, and Bex v. Bedall (b)1, that non-access may be proved to bastardize the issue, though the husband be in England; and the old doctrine of the quatuor maria (c)1 was agreed to be exploded. And in the latter case, the order being stated to be made " on the examination of the wife and on other proof," it was holden to be good ; though it was agreed that the evidence of the wife alone to prove non-access would not have been sufficient, according to the case of The King v. Reading; but that she was a witness from necessity to prove the criminal conversation. It appears by the report [196] of Hex v. Reading (a)2, that the wife was the only witness to prove the non-access, as well as the criminal intercourse ; and Lord Hardwicke said, " It would be of dangerous consequence to lay it down in general that a wife should be a sufficient sole evidence to bastardize her child, and to. discharge her husband of the burthen of its maintenance." Upon the authority of that case, the order was quashed in The King v. Booke (b)2; it having been made upon the sole evidence of the wife as to the non-access. Both those cases therefore are distinguishable from the present. The 2d objection is grounded on this, that the stat. 6 Geo. 2, c. 31, s. 1, which gives jurisdiction to magistrates to take examinations for making orders of filiation in case of bastards likely to become chargeable, is confined in terms to the bastards of single women. But this order would at any rate be good on the general statute of the 18 Eliz. c. 3, which gives the magistrates jurisdic', tiori to filiate bastards " begotten and born out of lawful matrimony." And it was determined in Bex v. Albertson (cf, that a bastard begotten on the body of a feme covert, while her husband was beyond the four seas, was " begotten and born out of lawful matrimony." And in Bex v. Taylor (d)\ the mother of a bastard was after hei marriage holden to be still liable to be committed for [197] disobedience to an order of maintenance made under the Statute of Elizabeth. According to Bex v. M&thews (a)*, and An Anonymous case in 10 Mod. 84, it is not even necessary to state in the ordeB that the bastard child is likely to become chargeable ; for that, say the Court, will be presumed. And in Bex v. Nelson (6)3, though it were agreed, that it ought to appear-by the order, that the child was likely to be chargeable; yet...
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