Every constable or other officer to whom any bond of the putative father of a bastard, or of a child likely to be born a bastard, taken out of the county where the warrant was issued, shall be delivered as hereinbefore directed, who shall neglect or refuse to deliver the same to the justice who issued such warrant, within fifteen days after the receipt of the same, shall forfeit the sum of twenty-five dollars, to be sued for, and recovered by, and in the name of any overseers of the poor, or county superintendents, at whose instance the said warrant was issued.1

§ 6. PROCEEDINGS UPON FAILURE TO EXECUTE BOND.

If the person so charged and apprehended shall not execute the bond so required, with one or other of the conditions aforesaid, to the satisfaction of the justice before whom he shall be brought, then the constable or other proper officer, having such warrant, shall take the person so apprehended before the justice who originally issued such warrant.2

If any justice who shall have issued any warrant for the apprehension of the father of a bastard, or of a child likely to be born a bastard, shall have died, vacated his office, or be absent on the return of such warrant, the constable who may appehend such father shall carry him before some other justice of the same town, who shall have the same authority to proceed therein as the justice who issued such warrant.3

In such case the constable's return to the warrant should show the death, vacancy or absence of the justice who issued the warrant before any other justice should take cognizance of the matter.4

§ 7. PROCEEDINGS UPON THE RETURN OF THE WARRANT. Upon the person so charged with being the father of such bastard, or of such child likely to be born a bastard, being brought before the justice who issued the warrant for his apprehension, whether he was arrested in the same or in any other county, the said justice shall immediately call to his aid any other justice of the same county; and the said two justices shall proceed without unnecessary delay to make examination of the matter, and shall

1 1 R. S., 656, § 70. 21 R. S., 644, § 10. 1 R. S., 656, § 72. Vide post. page.

again examine the mother of such bastard, or the woman so pregnant as aforesaid, on oath, in the presence of the persons so charged or apprehended, touching the father of such child, and shall hear any proofs that may be offered in relation thereto; and on the application of the person so charged, or of the persons appearing in behalf of the public, either of the said justices shall issue a subpoena to compel the attendance of witnesses before them, which may be enforced, and the witnesses may be compelled to appear and testify in the same manner as in any civil cause before a justice of the peace.1

§ 8. ADJOURNMENT OF PROCEEDINGS.

If the said justices shall not be prepared to proceed, or the person charged shall require delay, and give sufficient reasons therefor, they may adjourn such examination for any time not exceeding six weeks, and shall take a bond with sureties from such person for his appearance at such time before them, in the penalty hereinafter directed.2

Under the provisions of the statute providing that the justices may adjourn the proceeding on taking from the defendant a bond for his appearance at the adjourned day, the appearance intended is not merely a temporary one, but his continued appearance and attendance until the examination and subsequent proceedings are finally closed.3

In the case cited above, the defendeant after giving the bond appeared, and after the examination voluntarily departed, contrary to the direction of the justices. The justices took a recess, and after reassembling, and calling and waiting for the defendant, made an order of filiation in his absence, and adjourned without day, it was held that his voluntary departure, and not being present to answer and receive notice of the order, was a breach of the bond. That it was immaterial that he intended to return, or actually did next day return to the place and offer to the justices to submit himself to imprisonment upon their warrant, as in the case of neglect to give a bond. That it was immaterial in an action on the bond, whether the justices had power to make the order in defendant's absence; and it was further regarded as

1 1 R. S., 641, § 11.

1 R. S., 644, § 12.

Peo. v. Jayne, 27 Barb., 58.

be approved by them, with one or other of the following conditions: First. That such person will pay weekly, or otherwise, as shall have been ordered, such sum for the support of the said child, and for the sustenance of its mother, as aforesaid, as shall have been ordered, or shall at any time thereafter be ordered by the court of sessions of the same county, and that he will fully and amply indemnify the county, and town or city, where the said bastard shall have been born, or where the woman likely to have such bastard shall be, and every other county, town or city, which may have incurred any expense, or may be put to any expense for the support of such child or its mother during her confinement and recovery therefrom, against all such expenses. Or, second. That such person will appear at the next court of sessions of the said county, and not depart the said court without its leave.1

It has been held that the bond must be for one or the other of the two conditions, not for both. If it contains both conditions, so as to provide that the obligor should appear, and that he should indemnify, it is a nullity; it was so held in a case in which rejecting one condition as repugnant, would not have sufficed to maintain the action. If the bond literally follows the provisions of the statute, it is valid, however superfluous any of its provisions may be. Thus, a bond which embraced the sustenance of the mother during her confinement, is valid, although it was given several years after the birth of the child; such a bond is in conformity with the statute.3

The mother's ability to support the child, does not relieve the father from his liability in the recognizance. The child does not, on that account, cease to become chargeable to the town.1

After an order of filiation, an infant is bound by law to support his illegitimate child, and his bond pursuant to the statute, is binding on him, notwithstanding his infancy.

2 Hoagland v. Hudson, 8 How., 343. See Peo. v. Tellin, 13 Wend., 597;

ante.

Peo. v. Mitchell, 4 Sandf., 466.

Peo. v. Corbett, 8 Wend., 520; Peo. v. Haddock, 12 Id., 475.

Peo. v. Moores, 4 Den., 518; 25 Wend., 698; 6 Mass., 80; 4 Id., 376; 1 Id., 83.

§ 13. WHEN FATHER TO BE DISCHARGED AND WHEN COMMITTED. Upon such bond being executed to the satisfaction of the jus tices, they shall discharge such person from his arrest. But if he refuses or neglect to execute a bond with one of the conditions aforesaid, or to pay the costs and charges so certified, he shall be committed by such justices, or either of them, to the common jail of the city or county by warrant, there to remain until discharged by the Court of Sessions, or until he shall execute such bond, in the penalty which shall have been required by the justices.1

If the reputed father of a bastard child, against whom an order of filiation has been made, shall not pay the amount certified for the costs of apprehending him; and of the order of filiation, the justices may issue a warrant for his commitment, though he has executed the bond pursuant to the statute; and where such bond has been given, but the costs are not paid, the warrant should direct the father to be safely kept until discharged by the Court of Sessions, or until he shall pay the costs. As the party may be committed on different grounds, and as the statute does not prescribe the form of the warrant of commitment, it may be adapted to the nature of the case.2

§ 14. PROCEEDINGS UPON RETURN OF BOND TAKEN OUT OF COUNTY ON

INDORSED WARRANT.

When any bond taken out of the county as aforesand, by which the person charged shall be bound to appear at the next Court of Sessions, shall be returned to the justice who issued the warrant, such justice shall in like manner call in the aid of another justice of the peace of the same county, and the said two justices shall proceed in manner aforesaid, to examine and determine who is the father of such bastard, or of such child likely to be born a bastard, and shall make an order of filiation, and prescribe the sum to be paid by such putative father for the support of such child, and for the sustenance of the mother as aforesaid, and shall certify the reasonable costs of apprehending the said father, and of the order of filiation.3

§ 15. EXAMINATION IN SUCH CASE.

Such examination and order may be made in the absence of the person so charged, unless before the same be made, he shall personally require of the justice issuing the warrant, that such examination be made in his presence; in which case reasonable notice of the time and place of such examination shall be given to the person so charged. He may appear and offer testimony in relation to the matters to be inquired into, and the same proceedings shall be had as in the case of the person so charged, being brought before such justice.1

Where the bond is taken out of the county, though the condition is simply to indemnify, the justices have power to make an order of filiation in the absence of the putative father.2

§ 16. MOTHER OF BASTARD COMPELLED TO TESTIFY.

In making any examination hereby authorized, the justice or justices may compel the mother of a bastard, so chargeable, or likely to become chargeable, or a woman pregnant with a child likely to be born a bastard, and to become so chargeable, to testify, and disclose the name of the father of such bastard or child; and, in case of her refusal, may, after the expiration of one month from the time of her delivery, if she shall be sufficiently recovered, commit her to the common jail of the county, by a warrant under his hand, or the hands of such justices in which the cause of commitment shall be distinctly set forth, there to remain until she shall testify and disclose the name of such father.3

§ 17. MOTHER WHEN COMPELLED TO SUPPORT BASTARD.

If the mother of a bastard child, chargeable or likely to become chargeable as before declared, be possessed of any property in her own right, any two justices of the peace of the county where such mother may be, on the application of any county superintendent or overseer of the poor, shall examine into the matters, and in their discretion make order for the keeping of such bastard, by charging such mother with the payment of money week.