TITLE V. Of Proceedings respecting Bastards. CHAPTER I. Proceedings before magistrates, respecting bastards. II. Appeals from the orders of magistrates, respecting bastards. III. Enforcement of the undertaking for the support of the bastard or its mother, or for appearance on appeal. CHAPTER I. PROCEEDINGS BEFORE MAGISTRATES, RESPECTING BASTARDS. SEC. 838. Definition of a bastard. 839. Who are liable for its support. 840. When bastard, chargeable to the public, is born or is likely to be born, application to be made to a justice of the peace or police justice. 841. Examination by the magistrate, and warrant against the father. 842. Justice designated as a magistrate, and person pro- 843. Warrant, when to be served in another county. 845. On giving undertaking, defendant to be discharged. 847. Before what magistrate in the same county, defend- 848. The magistrate to associate with himself, another ant. 850. Determination of the case, and order of the magis trates. 851. Defendant to pay the costs, and give undertaking for support of bastard and mother, or for appearance at sessions. 852 On giving undertaking, defendant to be discharged; 853. Commitment of defendant, during examination. 855. Examination in such case, and order thereon. 857. If mother possess property, two magistrates may SEC. 858. If she do not comply, she must be committed, or discharged on undertaking. 859. Magistrates may reduce amount directed to be paid Court of sessions may re by the father or mother. 860. Proceedings against the father or mother, absconding from their place of residence. §838. Definition of a bastard.—A bastard is a child who is begotten and born, 1. Out of lawful matrimony; 2. While the husband of its mother was separate from her, for a whole year previous to its birth; or, 3. During the separation of its mother from her husband, pursuant to a judgment of a competent court. Peo. v Overseers of Ontario, 15 Barb., 286. §839. Who are liable for its support. The father and mother of a bastard are liable for its support. In case of their neglect or inability, it must be supported by the county, city or town in which it is born, as provided by special statutes. Infancy no defense. Peo. v. Moores, 4 Denio, 518. See Peo. v. Overseers of Ontario, 15 Barb., 286. § 840. Application to inquire into the facts. — If a woman be delivered of a bastard, or be pregnant of a child likely to be born such, and which is chargeable to to a county, city or town, a superintendent of the poor of the county, or an overseer of the poor or other officer of the alms-house of the town or city where the woman is, must apply to a justice of the peace or police justice in the county, to inquire into the facts of the case. Justice can only act in his county and on proper official application. Sprague v. Eccleston, 1 Lans., 74. See Wallsworth v. McCullough, 10 Johns., 93; Birdsall v. Edgerton, 25 Wend., 619. Evidence. Peo. ex rel. Fuller v. Carney, 29 Hun, 47. § 841. Examination by the magistrate and warrant against the father. The magistrate must, by the examination of the woman on oath, and any other testimony which may be offered, ascertain the father of the bastard. and must issue his warrant, directed to a peace officer of the county, commanding him, without delay, to appre hend the father and bring him before the justice, for the purpose of having an adjudication as to the filiation of the bastard. § 842. Justice designated as a magistrate, and person proceeded against as defendant. An officer issuing a warrant or making an examination, as provided in this chapter, is designated as a magistrate, and the person against whom the warrant is issued, as the defendant. § 843. Warrant, when to be served in another county. -If the defendant reside in another county than that in which the warrant issued, the magistrate must, by an indorsement thereon, direct the sum in which the defendant shall give security, and the officer must deliver the warrant to a justice of the peace or police justice in the city or town in which the defendant resides or is found. The magistrate to whom it is presented, on proof, under oath, of the signature of the magistrate who issued the warrant, must then indorse a direction thereon, that it be served in the county in which he resides, and the defendant may be arrested in that county accordingly. Upon this proof, the magistrate indorsing the warrant is exempted from liability to a civil or criminal action, though it afterward appear that the warrant was illegally or improperly issued. § 844. Magistrate in another county, may take undertaking. When the defendant is arrested in another county, he must be taken before the magistrate who indorsed the warrant, or before another magistrate of the same city or county, who may take from the defendant an undertaking, with sufficient sureties, to the effect: 1. That he will indemnify the county, and town or city, where the bastard was or is likely to be born, and every other county, town or city, against any expense for the support of the bastard, or of its mother during her confinement and recovery, and to pay the costs of arresting the defendant, and of any order of filiation that may be made, or that the sureties will pay the sum indorsed on the warrant; or 2. That the defendant will appear and answer the charge at the next court of sessions of the county where the warrant was issued, and obey its order thereon. Attorney cannot be surety. Rule 5 Sup. Ct. See Peo. v. Tilton, 13 Wend., 597. § 845. On giving undertaking, defendant to be discharged. When either of the undertakings mentioned in the last section is given, the magistrate must discharge the defendant, and must indorse a certificate of the discharge upon the warrant. He must also deliver the warrant, with the undertaking, to the officer, who must return it to the magistrate granting the warrant, by whom the same proceedings must be had, as if he had taken the undertaking. § 846. If undertaking not given.-If the defendant do not give security, as provided in section 844, the officer must take him before the magistrate who issued the warrant. § 847. When magistrate issuing warrant is unable to act. If, however, the magistrate who issued the warrant be absent or unable to act, the defendant must be taken before the nearest or most accessible magistrate in the same county. The officer must, at the same time, deliver to the magistrate, the warrant with his return indorsed and subscribed by him. § 848. Magistrate to associate with himself, another magistrate. The magistrate before whom the defendant is brought, as provided in the last two sections, must immediately, associate with himself, another justice of the peace or police justice in the same county or city; and the two magistrates thus associated, must inquire into the charge, and must examine on oath, the woman who is the mother of or pregnant with the bastard in the presence of the defendant, in respect to the charge, and hear any testimony which may be offered in relation thereto. § 849. Adjournment of examination. Security from defendant. The magistrates may, on the application of the defendant, for good cause, adjourn the examination, not exceeding thirty days, upon the defendant giving an undertaking, with two sufficient sureties, to the effect that he will appear before the magistrates at the time appointed, or that the sureties will pay the sum mentioned therein, which must be fixed by the magistrates, and which must be a full indemnity for the expense of supporting the bastard and its mother, as provided in section 851. Departing without leave, after appearance, forfeits bond. Peo.v. Jayne, 27 Barb., 58. § 850. Determination of the case, and order of the magistrates. Upon the hearing, the magistrates must determine who is the father of the bastard, and must proceed as follows: 1. If they determine that the defendant is not the father of the bastard, he must be forthwith discharged; 2. If they determine that he is the father, they must make an order of filiation, specifying therein the sum to be paid weekly or otherwise, by the defendant for the support of the bastard; and if the mother be indigent, the sum to be paid by the defendant for her support, during her confinement and recovery; 3. They must certify the reasonable costs of arresting the defendant, and of the order of filiation; 4. They must reduce their proceedings to writing, and subscribe them. Sub. 1. Adjudication in favor of defendant is a bar. Thayer v. Overseers, etc.. 5 Hill, 443. See Peo. ex rel. Dumont v. Tompkins, G. Sess., 19 Wend., 154. Sub. 3. See Dunham v. Moneil, H. & D., 377. § 851. Defendant to pay the costs, and give undertaking for support, or for appearance at sessions.—If the defendant be adjudged to be the father, he must immediately pay the amount certified for the costs of the arrest and of the order of filiation, and enter into an undertaking, with sufficient sureties approved by the magistrates, to the effect, 1. That he will pay weekly or otherwise, as may have |