2. If they determine that he is such father, they shall make an order of filiation, in which they shall specify the sum to be paid weekly or otherwise, by such putative father, for the support of such bastard, or of such child likely to be born a bastard.

3. If the mother of such child be in indigent circumstancs, they shall determine the sum to be paid by such putative father, for the sustenance of such mother during her confinement and her recovery therefrom.

4. They shall certify the reasonable costs of apprehending and securing the said father, and of the order of filiation.

5. They shall reduce their proceedings to writing, and subscribe the same.1

A decision of the justices acquitting the person charged as the father of the bastard is conclusive, and a bar to any new proceeding against him.2

No order of filiation is necessary where the putative father elects to give the bond, he thereby admits his liability.3

An order of filiation adjudging the bastard chargeable, and fixing the allowance to be paid by the putative father, is conclusive on him until reversed, and the onus is on him to show a legal discharge from the obligation.*

So, also, the determination of the justices in ascertaining and certifying the reasonable costs of apprehending and securing the father, and of the order of filiation is a judicial act, and until reversed, it is conclusive, and the defendant who has paid such costs cannot bring an action to recover back an excessive amount.5

§ 12. BOND TO BE ENTERED INTO AND COSTS PAID BY PERSON

ADJUDGED REPUTED FATHER.

Such person so adjudged to be the reputed father, shall, upon notice of such order, immediately pay the amount so certified, for the costs of apprehending him and of the order of filiation, and shall enter into a bond to the people of this State, in such sum as such justices shall direct, with good and sufficient sureties, to

1 R. S., 644, § 13.

Thayer v. Overseers, 5 Hill, 443, approved; Stowell v. Overseers, 5 Den., 98, overruling dictum in Peo. v. Tompkins, 19 Wend., 154.

Peo. v. Heine, 5 N. Y. Leg. Obs., 381.

* Overseers v. Ely, Hill & D. Supp., 379; Peo. v. Corbett, 8 Wend., 520. 'Dunham v. Moncell, Hill & D. Supp., 377.

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

ante.

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

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 justices, 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

1 1 R. S., 645, § 15.

Peo. v. Stowell, 2 Den., 127.

1 R. S., 646, § 18.

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

11 R. S., 646, § 19.

Peo. v. Tilton, 13 Wend., 597. 1. R. S., 646, § 20.

ly, or other sustentation for the support of such child, as they shall think meet.1

§ 18. PROCEEDINGS IN CASE OF REFUSAL.

If after the service of such order subscribed by the said justices upon such mother, she shall refuse, or neglect to perform the same, she shall be committed to the common jail of the county, there to remain without bail until she comply with such order, unless she shall execute a bond to the people of this State in such sum as the said justices shall direct, with good and sufficient sureties, to appear at the then next court of sessions in the said county, and not to depart the said court without its leave.2

§ 19. AMOUNT ORDERED TO BE PAID MAY BE INCREASED OR REDUCED.

The justices who shall have made any order of filiation or maintenance against the father or mother of any bastard, may, from time to time, vary the amount therein directed to be paid, by reducing the same as circumstances may require; and upon the application of any county superintendent or overseer of the poor interested therein, and after ten days' notice to be given to the party who may be affected thereby, the court of sessions of the county may increase the sum in and by such order, directed to be paid for the support of any bastard; and the said court, on the application of any person affected by such order, and after the same notice to the superintendents or overseers, at whose instance it was procured, may reduce the amount directed to be paid by any such order.3

§ 20. COMPROMISE WITH PUTATIVE FATHERS.

Superintendents of the poor in any county in this State have power to make such compromise and arrangements with the putative fathers of any bastard children within their jurisdiction, relative to the support of such children, as they shall deem equitable and just, and thereupon to discharge such putative father from all liability for the support of such bastards.4

So also may the commissioners of the alms house of the city

1 1 R. S., 646, § 21.

1 R. S., 646, § 22.

1 R. S., 647, § 23.

⚫ Laws 1832, ch. 26, § 2; 1 R. S., 656, § 69.