proceedings had against him, in the state or territory in which he is charged to have committed the offense, may be received as evidence before the magistrate. The affidavit for the arrest of a fugitive from justice must state positively that the crime was committed within the state from which he fled; and that he is actually a fugitive from that state. Ex parte Hayward, 1 Sendf. 701; 1 Cod Rep. 45; Ex parte Leland, 7 Abb. Pr. (N. S.) 64; People v. Brady, 56 N. Y. 182 Where a fugitive from justice is brought up on habeas corpus, the court wil not inquire into his probable guilt, but only as to the legality of the proces and the regularity of the commitment. Ex parte Clark, 9 Wend. 212; Peop v. Brady, 56 N. Y. 182; People v. Pinkerton, 17 Hun, 199. When the demand for the surrender of a fugitive from justice is supporte by affidavit, no less degree of certainty is admissible than is required to an i dictment for the same offense. People v. Brady, 56 N. Y. 182. An affidavit stating that the prisoner is charged with the crime of forgery another state is not sufficient for his detention. Ex parte Leland, 7 Abb. I (N. S.) 64. See Ex parte Solomans, 1 id. 347. 830. When and for what time to be committed. If from the examination under such warrant, it appears probal that the person charged has committed the crime alleged, t magistrate, by warrant reciting the accusation, must commit b to the proper custody in his county, for a time specified in warrant, to enable an arrest of the fugitive to be made under warrant of the governor of this state, which commitment shall exceed thirty days exclusive of the day of arrest, on the requ tion of the executive authority of the state or territory in wh he is charged to have committed the offense, unless he give as provided in the next section, or until he be legally dischar An alleged fugitive from justice, if not demanded in a reasonable time b executive of the state from which he fled, will be discharged from a People v. Goodhue, 2 Johns. Ch. 198; 1 Wheel. C. C. 427; Ex parte Wash 4 Johns. Ch. 106. The evidence to detain a fugitive for the purpose of surrender must be as would be sufficient to commit him for trial had the crime been perpet in the state to which he fled. Ex parte Washburn, 4 Johns. Ch. 106; 3 W Cr. Cas. 473. See, also, 17 Am. L. Rev. 340. § 831. His admission to bail.- Any judge of any named in section eight hundred and twenty-seven may, in hi cretion, admit the person arrested to bail, by an undertaking, sufficient sureties and in such sum as he deems proper, for h pearance before him at a time specified in the undertaking, must not be later than the expiration of thirty days from the date of arrest exclusive of such date, and for his surrender to be arrested upon the warrant of the governor of this state. 832. Magistrate to give notice to the district attorney of the name of the person and the cause of his arrest.-Immediately upon the arrest of the person charged, the nagistrate must give notice to the district attorney of the county of the name of the person and the cause of his arrest. $833. District attorney to give notice to executive uthority of the state or territory, etc.-The district, ttorney must immediately thereafter give notice to the executive athority of the state or territory, or to the prosecuting attorney or residing judge of the criminal court of the city or county therein, aving jurisdiction of the offense, to the end that a demand may e made for the arrest and surrender of the person charged. 834. Persons arrested to be discharged, unless surendered within the time limited. The person arrested ust be discharged from custody or bail, unless before the expition of the time designated in the warrant or undertaking, he be rested under the warrant of the governor of this state. 835. Repealed, Laws 1886, chap. 638. CHAPTER II. UGITIVES FROM THIS STATE, INTO ANOTHER STATE OR TERRITORY. 836, 837. Repealed, Laws 1882, chap. 360. TITLE V. OF PROCEEDINGS RESPECTING BASTARDY. AFTER L Proceedings before magistrates, respecting bastards. CHAPTER I. PROCEEDINGS BEFORE MAGISTRATE RESPECTING BASTARDS. SECTION 838. Definition of a bastard. 839. Who are liable for its support. 840. When bastard, chargeable to the public, is born or is likely to be born, application to be made to a justice of the peace or police justice. 841. Examination by the magistrate, and warrant against the father. 842. Justice designated as a magistrate, and person proceeded against as defendant. 843. Warrant, when to be served in another county. 844. Magistrate in another county may take undertaking for suppor 845. On giving undertaking, defendant to be discharged. 847. Before what magistrate in the same county defendant is to b to act. 848. The magistrate to associate with himself another magistrate 849. Adjournment of examination; security from defendant. 852. On giving undertaking, defendant to be discharged, otherwis 853. Commitment of defendant during examination. 854. Proceedings by magistrate, when security is given by defends on arrest out of the county. 855. Examination in such case, and order thereon. 856. Magistrates may compel mother to disclose the father of t bastard; proceedings, if she refuse. 857. If mother possess property, two magistrates may make an ord that she pay for the support of the child. 858. If she do not comply, she must be committed, or discharged undertaking 859. Magistrates may reduce amount directed to be paid by father or mother; court of sessions may reduce or increase it 860. Proceedings against the father or mother absconding from th place of residence. 838. Definition of a bastard. A bastard is a child w is begotten and born, 1. Out of lawful matrimony; 2. While the husband of its mother was separate from her for a whole year previous to its birth; or, 2. During the separation of its mother from her husband pursuant to a judgment of a competent court. See People v. Court of Sessions, 45 Hun, 58. As to the unrepealed provisions of the Revised Statutes on this subject, see 1 Birdseye's Stat. 246. The presumption in favor of legitimacy is exceedingly strong. For v. Burke, 31 Minn. 319. See, also, 2 Whart. Ev. (3d ed.), § 1298; 1 Broom & Had. Com. (Wait's ed.) 384. As to proof of illegitimacy of a child born of a married woman while her husband is within such a distance as afforded an opportunity for intercourse, see 1 Greenl. Ev., § 28, 344; Best Ev. (5th Eng. ed.) 464; 1 Taylor Ev. (7th ed.), SS 16, 106. Proof of non-access of the husband destroys the presumption of legitimacy of a child of a married woman. State v. Mc Dowell, 101 N. C. 734. To bastardize and disinherit a child born in lawful wedlock the most clear and conclusive evidence of non-access of the husband is required. Declarations of the husband are insufficient. Watts v. Owens, 62 Wis. 512. The illegitimacy of a married woman's child may be established by proof of the continued absence of her husband. Pittsford v. Chittenden, 58 Vt. 49.. The mother of an alleged bastard, who is a married woman, and whose busband was living at the time of the alleged intercourse and the birth of the child, is from necessity a competent witness to prove the illicit intercourse and who is in fact the father of the child. People v. Overseers, 15 Barb. 286; Chamberlain v. People, 23 N. Y. 90; Ratcliff v. Wales, 1 Hill, 63; Babcock v. Booth, 2 id. 186. But she is not competent as a witness to establish the non-access of her husband; nor his absence from the state; nor any fact which may be proved by ther testimony. People v. Overseers, 15 Barb. 286; People v. Court of Sessions, 45 Han, 54; Chamberlain v. People, 23 N. Y. 90; Egbert v. Greenwalt, 44 Mich. 245; 38 Am. Rep. 260. In People, ex rel. Fuller, v. Carney, 29 Hun, 47, upon the trial of proceedings have the defendant adjudged the father of a bastard child, the district attorney was allowed, against the defendant's objection and exception, to ask the mother, who was being examined as a witness, to look at the child and tell what the color of its eyes was. Held, error. The court said: "We do not regard this kind of evidence as safe or proper. In the case of Petrie v. Howe, Th. & C. 85, the question was as to the color of the child's hair. It was held In that case that such evidence was calculat ed to, and probably did, prejudice the defendant; that it was improper, and a new trial was granted. The arguent used in that case in reference to the color of the hair applies with equal force in this case as to the color of the eyes. Common observation reminds us that in families of children, different colors of hair and eyes are common and that it would be dangerous doctrine to permit a child's paternity to be quesor proved by the comparings of the color of its hair or eyes with that of the alleged parent." See, also, 22 Eng. Rep. 286; Hanawalt v. State, 64 fioned Wis. 84; 54 Am. Rep. 588; Robnett v. People, 16 Bradw. 299; State v. Smith, 54 Iowa, 104; 37 Am. Rep. 192; State v. Danforth, 48 Iowa, 43; 30 Am. Rep. 387; Clark v. Bradstreet, 80 Me. 454; 6 Am. St. Rep. 221, note. § 839. Who are liable for its support. The father and mother of a bastard are liable for its support. In case of their neglect or inability, it must be supported by the county, city or town in which it is born, as provided by special statutes. See § 857, post. The mother of a bastard has the right to its control and custody as against the putative father, and is bound to maintain it as its natural guardian. Matter of Doyle, Clarke's Ch. (Moak's Notes) 154; Robalina v. Armstrong, 15 Barb. 247; People v. Kling, 6 id. 366; The Queen v. Nash, 10 Q. B. Div. 454; 37 Eng. Rep. 448; Bustamento v. Analla, 1 New Mex. 255. An undertaking upon the part of the putative father of an illegitimate child. to pay to the mother a sum of money for the support of the child, is not illegal; and the obligation may be taken by the mother, payable to herself in her own right, or for the benefit of the child. Hook v. Pratt, 78 N. Y. 371 34 Am. Rep. 539; Moncrief v. Ely, 19 Wend. 405; Birdsall v. Edgerton, 2 id. 619; Hicks v. Gregory, 8 C. B. 378; Smith v. Roche, 6 C. B. (N. S.) 223 Nichole v. Allen, 3 C. & P. 36; Jennings v. Brown, 9 M. & W. 496; Knowlma v. Bluett, L. R., 9 Exch. 1, 307; Bunn v. Winthrop, 1 Johns. Ch. 337, 338 Davis v. Herrington (Ark.), 13 S. W. Rep. 215. Contra, Nine v. Star, 8 Or. 49 Mercer v. Mercer, 37 Alb. L. J. 367. Infancy of the father is no defense. People v. Moores, 4 Den. 518. An illegitimate child was supported by the relatives of the mother, at th request of the father, and upon his promise that they should be paid, and the if the child survived him he would provide for her by will sufficiently to e able her to pay therefor. He died before the child, but made no such provi ion. After coming of age the child promised to repay the expenditures. Hel that an action lay against the father's estate to recover therefor, and that suc action could be maintained by the child. Todd v. Weber, 95 N. Y. 181; 49 Au Rep. 20. The natural father of an illegitimate child cannot be held for its support the mother, during the pregnancy, marries another man who has full know edge of her pregnancy. Miller v. Anderson, 43 Ohio St. 473; 54 Am. Rep. 82 In Rheel v. Hicks, 25 N. Y. 289, the plaintiff, having been arrested upon charge of being the putative father of a bastard, compromised under the act 1832, chapter 26, upon the payment of $50. It turned out that the woman w not pregnant. Held, that plaintiff was entitled to recover the $50. Hadd fendant paid over the money to the county, it would have been no defense. § 840. When bastard, chargeable to the public, is bor or is likely to be born, application to be made to a justi of the peace or police justice.-If a woman be delivered of bastard, or be pregnant of a child likely to be born such, a |