provided in sections 844 and 849; and when committed to prison, he must be actually confined therein.

People ex rel Com'rs v. Dando, 20 Abb. N. C. 245.

§854. Proceedings by magistrate when security is given by defendant on arrest out of the county-When security taken out of the county, for the appearance of the defendant at the court of sessions, as provided in section 844, is returned to the magistrate who issued the warrant, he must associate with himself another magistrate of the same county, and the magistrates thus associated must proceed as provided in sections 848 to 850, both inclusive.

§ 855. Examination in such case, and order thereon. The examination may be had, and the order of filiation made, in the absence of the defendant, unless, before the order is made, he require of the magistrate issuing the warrant, that the examination be had in his presence, in which case the examination must be had, as if the defendant had originally appeared.

§ 856. Magistrates may compel mother to disclose the father of the bastard; proceedings, if she refuse.-In making an examination authorized by this chapter, the magistrate issuing the warrant, or the magistrates making the examination, may compel the mother of a bastard, chargeable to a county, city or town, or a woman pregnant of a child likely to be born such, to disclose the name of the father of the bastard; or if she refuse to do so, may, by a warrant setting forth the cause thereof, at the expiration of one month from her delivery, if sufficiently recovered, commit her to the county jail, or in the city of New York, to the city prison of that city, until she disclose the name of the father.

See 838, ante. Mother of bastard who is married, is incompetent to prove husband's non-access. People v. Overseers, 15 Barb. 286. Can not forcibly examine mother to establish pregnancy. People v. McCoy, 45 How. Pr. 216. Scott v. People, 4 Wend. 555.

§ 857. If mother possess property, etc. If the mother of a bastard, chargeable or likely to become chargeable, as provided in section 840, be possessed of property in her own right, any two magistrates of the county or city where she is, on the application of any of the officers mentioned in that section, must examine into the matter, and may make an order charging the mother with the payment of money weekly, or otherwise, for the support of the bastard.

See § 839, ante. People v. Haddock, 12 Wend. 475; People v. Corbett, 8 id.

520.

§ 858. If she do not comply, she must be committed, or discharged on undertaking.-If, after service of the order upon the

mother, she do not comply therewith, she must be committed to the county jail, or in the city of New York, to the city prison of that city, until she comply, or enter into an undertaking, with sufficient sureties approved by the magistrates, to the effect that she will appear at the next court of sessions of the county, to answer the matters stated in the order, and obey its order thereon, or that the sureties will pay the sum mentioned in the undertaking, and which must be fixed by the magistrates.

§ 859 Magistrates may reduce amount directed to be paid by the father or mother; court of sessions may reduce or increase it.— The magistrates, who may have made an order against the father or mother of a bastard, as provided in sections 850 and 857, may, from time to time, for good cause, reduce the amount therein directed to be paid, and upon the application of any of the officers mentioned in section 840, the court of sessions of the county, upon ten days' notice to those officers, or to the father and mother of the bastard, may reduce or increase the amount so directed to be paid. People ex rel. Com'rs v. Dando, 20 Abb. N. C. 245.

§ 860. Proceedings against the father or mother, etc.--If the father or mother of a bastard, or of a child likely to be born such, abscond from their place of residence, leaving the bastard chargeable or likely to become chargeable to the public, 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 bastard was born, or is likely to be born, may apply to any two magistrates of the city or county where any property, real or personal, of the father or mother may be, for authority to take the same. Upon due proof of the facts on oath, to the satisfaction of the magistrates, they must issue their warrant, and proceed thereon, in the manner provided in title VIII, of this part, in relation to persons absconding and leaving their children chargeable to the public.

CHAPTER II.

See 6 N. Y. Supp. 423.

APPEALS FROM THE ORDERS OF MAGISTRATES, RESPECTING BASTARDS.

SEC. 861. Who may appeal, and in what cases.

862. Appeal, how taken.

863. Papers to be transmitted by magistrates, to court of sessions.

864. Court to hear the case. Evidence on hearing.

865. Court may affirm, vacate or modify the order, or adjourn the hearing till the bastard be born.

866. If woman be not pregnant, or be married before her delivery, or the child be not born alive, defendant to be discharged.

867. Order of the court, on affirmance.

SEC. 868. Commitment of defendant, if he fail to give undertaking.

869. Undertaking for appearance on appeal, when forfeited.

870. When mother bound to appear at the sessions, court to proceed as as upon an appeal.

871. When the court may make an order against the mother, for the support of the bastard

872. Proceedings against the mother, on affirmance or modification of the order of the magistrates.

873, 874. Costs on appeal, when awarded and how paid.

875. When order of filiation vacated, except on the merits, court may make a new order of filiation, or bind the defendant to appear. 876. If order of filiation be vacated, except on the merits, magistrates may proceed anew.

877. Court to inquire into circumstances of father or mother, committed for not giving undertaking to support the bastard.

878. Father or mother unable to support the bastard, may be discharged. 879. Notice, before discharge, and examination of the matter.

880. Party can not be discharged, but by the court.

§ 861. Who may appeal, and in what cases.-A person deeming himself aggrieved by the order of two magistrates, made pursuant to the last chapter, may appeal therefrom to the next court of sessions of the county; except that a person who has executed an undertaking to obey an order of filiation, and indemnify the public, as provided in section 851, can not appeal from any other part of the order mentioned in section 850, than that which fixes the weekly or other allowance to be paid.

People ex rel. Fuller v. Carney, 29 Hun, 47; 1 N. Y. Cr. 270; People ex rel. Wright v. Court, etc. 45 Hun, 55; People ex rel. Com'rs v. Dando, 20 Abb. N.

C. 245.

§ 862. Appeal, how taken.- When the father or mother of the bastard has entered into an undertaking for appearance at the next court of sessions of the county, as provided in sections 851 and 858, it is an appeal from the order of filiation or maintenance; and no other notice thereof is necessary. In any other case, the appeal is taken, by a written notice of at least ten days before the court, to the magistrates who made the order, and to the party affected thereby, or to the officer at whose instance it was obtained.

People ex rel. Fuller v. Carney, 29 Hun, 47; People ex rel. Com'rs v. Dando, 20 Abb. N. C. 245; People ex rel. Downs v. Lindsay, 53 Hun, 235.

§ 863. Papers to be transmitted by magistrates, to court of sessions.-The magistrates receiving an undertaking for appearance at the court of sessions, must transmit it to the court, before its opening, with a certified copy of the order appealed from.

People ex rel. Com'rs v. Dando, 20 Abb. N. C. 245.

§ 864. Court to hear the case, etc. Evidence on hearing.—The court must immediately, or at any other time it may appoint, proceed to hear the allegations and proofs of the parties; and the party in whose favor the order was made, must support it by evidence.

If the mother of the bastard be dead or insane, her testimony on the examination before the magistrates is receivable in evidence.

Stowell v. Overseers, etc. 5 Denio, 598; Roy v. Targee, 7 Wend. 358.

§ 865. Court may affirm, vacate or modify the order or adjourn the hearing till the bastard be born. The court may affirm or vacate an order of filiation or maintenance, or may reduce or increase the sum ordered to be paid for the support of the bastard or its mother; and, disregarding defects in form in the order, must amend it according to the fact. If, when the appeal is heard, the bastard be not born, the court may adjourn the hearing, until it be born, and in that case, must take an undertaking from the party appealing, for his appearance, in such sum and with such sureties as the court may deem sufficient.

Attorney can not be surety. Rule 5, Sup. Ct.

§ 866. If woman be not pregnant, etc., 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.

People ex rel. Fuller v. Carney, 29 Hun, 47; 1 N. Y. Cr. 270.

§ 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 of that city, until he do so, or be discharged by the court.

So in the original.

§ 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. People v. Jayne, 27 Barb. 58.

§ 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 the order, etc.—If the court affirm 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