with good and sufficient sureties, conditioned that such person shall pay weekly or otherwise, as shall have been directed by the order of filiation and sustenance, such sum for the support of such bastard or child, and for the sustenance of its mother during her confinement and recovery therefrom, as shall have been so ordered by two justices of the peace, or as the same shall have been or thereafter shall be modified by the court of sessions, and that he will fully and amply indemnify the county and town or the county and 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 which may be put to any expense, for the support of such child or its mother during her confinement or recovery therefrom.1

If any person, against whom such order shall be affirmed, shall refuse or neglect to execute such bond with such sureties, to the satisfaction of the said court, he shall be committed to the common jail of the county, by an order of such court, there to remain until he shall execute such bond, or be discharged by the said court.2

If any person bound to appear at any court of sessions, on the charge of being the father of a bastard or of a child likely to be born a bastard, shall depart the said court without executing the bond it may require, or without being discharged by the said court from the bond executed by such person for his appearance, the said bond shall be thereby deemed to be forfeited, and may be prosecuted as hereinafter directed.3

Where the mother of any bastard shall be bound to appear at any court of sessions, to answer on account of any order made against her for the support of such bastard, or shall be committed for neglect or refusal to enter into such bond, the court shall examine into the matter, compel the attendance of witnesses, and hear the allegations and proofs of the parties in the same manner as hereinbefore directed in the case of an appeal.4

If the court shall be satisfied that such mother has property in her own right, so as to be able to support such bastard, or con

' 1 R. S., 648, § 31.

' Id., 32.

⚫ Id., 33.

• Id., § 34.

tribute to its support, it shall confirm the order made for that purpose, and may in its discretion, vary the amount ordered to be paid weekly or otherwise. If not so satisfied, the court shall discharge such woman from her bond, and if in custody, from her imprisonment.1

If the court affirm such order, it shall require the said mother to execute a bond in such sum as it shall prescribe, with sufficient sureties to the people of this State, conditioned that such mother will faithfully comply with, and obey the order for the support of such bastard, so made and affirmed as the same shall have been modified, or may thereafter be modified by the court of sessions. If she shall refuse, or neglect to execute such bond, she shall be committed by an order of the said court, to the common jail of the county, there to remain until she shall execute such bond, or until she shall be discharged by the court.2

On an appeal to the sessions from an order of bastardy, the order is considered as prima facie evidence of the truth of the facts stated in it, and the onus of impeaching it, is thrown on the appellant.3

The appeal opens the whole matter anew, and if the order appealed from was for the payment of a certain sum for lying in expenses, the expenses should be proved in the sessions, unless waived by the appellant, and on certiorari, the proof will be deemed to have been waived, unless an objection to a confirmation on that ground appears to have been taken in the sessions.4

An order of the sessions confirming the order below, may be enforced by attachment for the money and cost directed by it to be paid if the bond given by the appellant on the order, is not conditioned for their payment.5

On an appeal from the sessions, affirming the order of filiation, it will be intended that the appellant was proven to be the father, though the return do not show it."

§ 25. WHEN COURT OF SESSIONS MAY MAKE ORIGINAL ORDER.

If the court of sessions quash any order of filiation and maintenance for any other reason than upon the merits and facts, such

1 1 R. S., 648, § 35.

* Id., § 36.

Sweet v. Overseers of Clinton, 3 John, 23.

Roy v. Targee, 7 Wend., 359.

• Idem.

• Overseers of Minden v. Cox, 7 Cow., 235.

court shall proceed and make an original order of filiation in the same manner as any two justices of the peace may by law, or such court shall bind over the person charged, to appear at the next sessions.1

§ 26. PROCEEDINGS WHEN ORDER QUASHED FOR INFORMALITY.

In case of any order being quashed for any other reason than on the merits, and the person charged being bound over as aforesaid, the same proceedings may be had by the justice of the peace, for the apprehension of the person charged as father of a bastard, or of a child likely to be born a bastard, and for the making of an order of filiation and maintenance, and for the commitment of such person, in default of executing any bond required by law as are in the statutes authorized in the first instance, and the same proceedings shall be subsequently had in all respects.2

§ 27, DUTY OF COURT OF SESSIONS WHEN FATHER OR MOTHER IMPRI

SONED.

Whenever any person shall be committed to prison, charged as the father of a bastard, or of a child likely to be born a bastard, and whenever any mother of a bastard shall be so committed for their default in not executing a bond to support such child, or to indemnify the public, it shall be the duty of the court of sessions of the county to inquire from time to time into the circumstances and ability of such father or mother to support such bastard, or to procure sureties to be bound with either of them.3

If the court shall at any time be satisfied that such father or mother is wholly unable to support such child, or to contribute to its support, or to procure sureties to be bound with either of them, the said court may, in its discretion, order such father or mother to be discharged from such imprisonment.1

Before any order for such discharge should be entered, the court shall be satisfied that reasonable notice has been given to the overseers of the poor, or the county superintendents at

whose instance such father or mother may have been committed, of the intention to apply for such discharge, and shall hear the allegations and proofs of the said superintendents or overseers, and may examine such father or mother on oath in relation to their circumstances.1

Whenever any father or mother shall be lawfully committed for the causes in the last section specified, or either of them, he or she shall not be discharged from imprisonment under or by virtue of any insolvent act, or any other act for the relief or discharge of imprisoned debtors, or in any other way, until discharged by the court of sessions of the county.2

§ 28. OF THE COSTS ON THE APPEAL.

The court shall award costs to the party in whose favor any such appeal shall be determined, and to any party to whom notice of appeal shall be given and not prosecuted. When awarded against any county superintendents or overscers of the poor of any town not liable for the support of its own poor the amount shall be paid by the county treasurer on the production of a certified copy of the order and of the taxed bill of such costs, and shall be by him charged to the town which shall be bound to support such bastard, if any town in the same county be so liable, and if there be no town so liable, then to be charged to the county.3

In other cases the payment of such costs may be enforced by rule and attachment of the same court, or by an action founded on the order for their payment. If the party against whom costs are awarded, reside out of the jurisdiction of the court of sessions, an action may be brought on such order by the party entitled to such costs, in which the production of a certified of the order and of a taxed bill of the costs shall be sufficient evidence.4

copy

The prevailing party in an appeal from an order of filiation, to whom costs are awarded, is entitled only to taxable costs.5

§ 29. PROCEEDINGS ON BONDS TAKEN FOR APPEARANCE AT SESSIONS AND FOR SUPPORT OF BASTARDS, ETC.

The bonds taken by any justice or justices of the peace for the appearance of any person charged as the father of a bastard, or of a child likely to be born a bastard, or for the appearance of any mother of a bastard child at any court of sessions, shall be signed by the persons binding themselves as principal and sureties, and shall be transmitted by the justice taking the same or receiving the same from any constable, as in the Revised Statutes provided, to the said court, at the opening of the next term thereof.1

If any default shall be made by which such bond shall become forfeited, the court shall cause the same to be prosecuted by the district attorney of the county, and the penalty thereof shall be recovered, and when collected shall be paid to the county treasurer; to be by him credited to the town liable for the support of the bastard, if there be any such town in the county, and if there be none then to be credited to the county.2

Whenever a bond shall be taken to perform any order that may be made in relation to the support of any bastard, or of any child likely to be born a bastard, or for the sustenance of its mother, and any breach shall happen in the condition thereof, the same may be prosecuted, in the name of the people of this State, by the county superintendents of the county or the overseers of the poor of the town which was liable for the support of such bastard or child, or which may have incurred any expense in the support of such bastard or child, or in the sustenance of its mother during her confinement and recovery therefrom.3

In such action the breaches of the condition shall be assigned, as in actions brought on bonds with condition other than for the payment of money, and the same proceedings shall be had in all respects. It shall not be necessary to prove the actual payment of money by any county superintendent, overseer of the poor or other person; but the neglect to pay any sum which shall be ordered to be paid by any competent authority for the support of the child or the sustenance of its mother, shall be deemed a breach of the condition of such bond, and the amount

1 R. S., 651, § 45.

" Id., § 46.

' Id., § 47.