§866. In what cases defendant to be discharged. If the woman alleged to be pregnant, be not so, or be married before her delivery, or the child be not born alive, the defendant must be discharged from custody, or from the obligation of his undertaking, either by the court or magistrates, upon that fact being made to appear. § 867. Order of the court, on affirmance.—If, upon the hearing of the appeal, the court of sessions affirm an order of filiation or maintenance, it must require the defendant to enter into an undertaking, with sufficient sureties, approved by the court, to the effect that he will pay, weekly or otherwise, according to the order as made by the magistrate* or modified by the court, the sum directed for the support of the bastard, and of the mother during her confinement and recovery; and that he will indemnify the county, and town or city where the bastard was or may be born (as the case may be), and every other county, town or city, which may have been put to expense for the support of the child, or of its mother during her confinement and recovery, against those expenses, or that the sureties will do so, not exceeding the sum mentioned in the undertaking, and which must be fixed by the court. § 868. Commitment of defendant, if he fail to give undertaking.—If, on judgment of affirmance, the defendant do not enter into an undertaking, as provided in the last section, he must be committed to the county jail, or in the city of New York, to the city prison of that city, until he do so, or be discharged by the court. § 869. Undertaking for appearance on appeal, when forfeited-The undertaking for the appearance of the defendant, at the court of sessions, upon an appeal, is forfeited, by his neglect to appear, or to give the undertaking mentioned in the last two sections, unless he be discharged by the court. Departing without leave after appearance forfeits bond. Peo. v. Jayne, 27 Barb., 58. *So in the original. § 870. When mother bound to appear at the sessions, court to proceed as upon an appeal. When the mother of a bastard is bound to appear at the court of sessions, or is committed as provided in section 858, the court must proceed in respect to the matter, in the same manner as upon an appeal. § 871. When the court may make an order against the mother, for the support of the bastard. If the court be satisfied that the mother has property in her own right, sufficient to enable her to support the bastard or contribute to its support, it must confirm the order mentioned in section 857, or may vary the sum ordered to be paid weekly or otherwise; or if not, it must discharge her from custody or from the obligation of her undertaking. § 872. Proceedings against the mother, on affirmance or modification of such order. If the court aflirm or modify the order, as provided in the last section, it must require the defendant to enter into an undertaking, with sufficient sureties approved by the court, to the effect that she will pay, weekly or otherwise, according to the order, as made by the magistrates or modified by the court, the sum directed for the support of the bastard, or that the sureties will do so, not exceeding the sum mentioned in the undertaking, and which must be fixed by the court. If the undertaking be not given she must be committed in the manner provided in section 868. §873. Costs on appeal, when awarded and how paid. The court must award costs to the party in whose favor an appeal is determined. When awarded against county superintendents or overseers of the poor of a town, not liable for the support of its own poor, they must be paid by the county treasurer, on delivering to him a certified copy of the order and of the taxed costs, and must be charged by him to the town in the same county, liable to support the bastard, or if there be none, to the county. In the city of New York, when costs are awarded upon an appeal, to the person charged as the father or mother of the bastard, they must, upon the production of similar vouchers, be paid by the comptroller of that city, and charged to the appropriation made to the commissioners of charities and corrections thereof. 8874. Id. In other cases, the payment of the costs may be enforced by the court, as in a civil action. If the party against whom they are awarded, reside out of the jurisdiction of the court, an action may be brought on the order, by the party entitled to the costs, in which the production of a certified copy of the order and of the taxed costs, is conclusive evidence. §875. When court may make a new order of filiation, or bind the defendant to appear. — If the court vacate an order of filiation, for any other cause than upon the merits, it must proceed, and may make an original order of filiation, in the manner prescribed in the second subdivision of section 850, or bind the person charged, in an undertaking, in a sum and with sureties approved by the court, to appear at the next court of sessions. § 876. If order of filiation be vacated, except on the merits, magistrates may proceed anew.— - If the order be vacated for any other cause than on the merits, and the person charged be bound as provided in the last section, the same proceedings may be had by the magistrate, for the apprehension of the defendant, and for making an order of filiation, and for the commitment of the defendant for not giving an undertaking, as are authorized in the first instance. And the same proceedings must be subsequently had, in all respects. § 877. Court to inquire into circumstances of father or mother, committed for not giving undertaking. When a person is committed to prison, charged as the father of a bastard, or of a child likely to be born a bastard, and when the mother of a bastard is so com mitted, for not giving an undertaking to support the bastard, or to indemnify the public, the court must inquire, from time to time, into the circumstances and ability of the father or mother, to support the bastard and to procure security therefor. § 878. Father or mother unable to support the bastard, may be discharged.—If the court be at any time satisfied that the father or mother is wholly unable to support the bastard, or to contribute to its support, or to procure security therefor, it may, in its discretion, order the father or mother to be discharged from imprisonment. § 879. Notice before discharge. Before granting the order, the court must be satisfied that reasonable notice has been given to the overseers of the poor, or to the county superintendents, or chief officers of the almshouse, at whose instance the party was committed, of the intention to apply for a discharge, and must hear the allegations and proofs of the superintendents, overseers or officers, and may examine the party applying on oath respecting the subject of the application. § 880. Party cannot be discharged, but by the court. - A person committed, as provided in section 877, cannot be discharged from imprisonment, except by the court of sessions of the county. CHAPTER III. ENFORCEMENT OF THE UNDERTAKING FOR THE SUPPORT OF THE BASTARD OR ITS MOTHER, OR FOR APPEARANCE ON APPEAL. SEC. 881. Court to order prosecution of undertaking, when forfeited. By whom prosecuted. 882. In whose name undertaking to be prosecuted. 885. Costs, how recovered, when awarded against the 886. Action may be maintained on the order of the magistrates or court. § 881. Court to order prosecution of undertaking, when forfeited. By whom prosecuted. If an under taking for the appearance at the court of sessions, of a person charged as the father or mother of a bastard, be forfeited, the court may order it to be prosecuted; and the sum mentioned therein may be recovered, and when collected, must, except in the city of New York, be paid to the county treasurer, and by him credited to the town in the same county, liable to the support of the bastard, or if there be none, to the county. In the city of New York, the court must order the undertaking to be prosecuted by the commissioners of charities and corrections, and when collected, it must be paid into the city treasury. In every other county, it must be prosecuted by the district attorney. § 882. In whose name undertaking to be prosecuted. When an undertaking to obey an order, in relation to the support of a bastard, or of a child likely to be born a bastard, or of its mother, is forfeited, it may be prosecuted in the name of the county superintendents of the county, or the overseers of the poor of the town, which was liable for the support of the bastard, or which may have incurred any expense in the support of the bastard, or of its mother, during her confinement and recovery; or in the city of New York, in the name of the corporation of that city. Order of filiation conclusive, unless appealed from. Wallsworth v. Mead, 9 Johns., 367; Peo. v. Relyea, Ib., 195; Rockfeller v. Donnelly, 8 Cow., 623. § 883. Evidence in the action, and measure of damages. In the action mentioned in the last section, it is not necessary to prove the actual payment of money by a county superintendent, overseer of the poor, officer of an alms-house, or other person; but the neglect to pay a sum ordered to be paid by competent authority, for the support of the bastard, or of its mother, is a breach of the undertaking, and the measure of the damages is the sum ordered to be paid, and which was withheld at the time of the commencement of the action, with interest thereon. Peo. v. Corbett, 8 Wend., 520; Rockfeller v. Donnelly, 8 Cow., 623. Money may be recovered back if mother not pregnant. Rheel v. Hicks, 25 N. Y., 289. |