Majority
p. 285THE PEOPLE on the relation of THE SUPERINTENDENTS OF THE POOR OF CORTLAND COUNTY a. DUELL. Supreme Court, Sixth District; Special Term, February, 1858.
Headnote
Examination op Party.—Certiorari.The provisions of the Code, allowing the examination of parties, have no applies- . tion to proceedings in courts of sessions.
The defendant, in proceedings in a case of bastardy, cannot be sworn on his own behalf. c
A common-law certiorari, to bring up the judgment and proceedings in a case of bastardy, does not bring up for review the evidence given on the trial, nor the-decisions as to the admission or rejection of evidence.
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Certiorari to the justices of Cortland county sessions.
On the 2d day of April, 1857, two justices of the peace, of the county of Cortland, made an order of filiation against one Rummer, charged with being the father of a bastard child then lately born.
Rummer appealed from the order to the Court of Sessions of Cortland county, and the case was tried on the 4th Monday in May, 1857. The mother of the child was sworn as a witness in behalf of the superintendents, and testified, amongst other things, that Rummer was the father of the child. Other witnesses were sworn, and gave testimony in behalf of the superintendents. *
After they rested, Rummer was offered as a witness in his own behalf, under section 399 of. the Code, notice thereof having been duly given. The counsel for the superintendents objected to his being examined as a witness in his own behalf, on the grounds stated in the opinion below. The objection was overruled, and Rummer was sworn as a witness in his own behalf, and gave testimony in the case; and testified, amongst other things, in substance, that he was not the father of the child.
After the evidence was closed, the Court of Sessions quashed . the order of filiation, and Rummer was discharged. And thereupon the superintendents sued out a common-law certiorari, directed to the Court of Sessions, to which a return was made setting forth the above facts.
Horatio Ballard, for the plaintiffs.
M. Goodrich, for the defendant.
The Court of Sessions of Cortland county most certainly erred, in allowing the defendant to be sworn in this case.
The defendant, who is proceeded against under our statute charged with being the father of a bastard child, cannot be sworn as a witness in his own behalf. The 399th section of the Code, as amended in 1857, has no application to bastardy proceedings, under our statute.
In the first place, the Code has no application to the" Court of
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Sessions; and, in enumerating the courts to which it is to be applied as a code of procedure, does not name courts of sessions; and it is very clear that it has no application, either to courts of sessions or oyer and terminer. But again, by section 471 of the Code, it is provided that “ until the Legislature shall otherwise provide, this act shall not affect proceedings upon mandamus, prohibition, nor appeals from surrogates’ courts, nor any special statutory remedy not heretofore obtained by action.” Row, the proceedings under the statute, to charge the putative father of a bastard child for its support, is a special statutory remedy, not existing at common law, and never obtained by action. The common law never gave an action against the putative father of a bastard child (1 Blacks. Com., 458). This 471st section of the Code expressly declares, that the Code shall not be applied to such a case. And besides, these proceedings in bastardy are quasi criminal {Barb. Cr. La/w, 522). I am without a doubt that the Court of Sessions erred in allowing the defendant in this case to swear himself clear of the charge, or to be sworn in his own behalf; and wish we had the right to correct the error in this common-law certiorari. But I am satisfied we cannot. A common-law certiorari, issued to bring up the judgment and proceedings in a case of bastardy, does not bring up for review the evidence given upon the trial, nor the decisions as to the admission or rejection of evidence. (The People on rel. Shipman v. The Overseers of the Poor of the Town of Barton, 6 How. Pr. R., 25; The People on rel. Crandall v. The Overseers of the Poor of the Town of Ontario, 15 Barb., 286 ; Haviland v. White, &c., 7 How. Pr. R., 154; The People on rel. Bodine v. Goodwin, 1 Seld., 568.)
The proceedings must be affirmed, therefore ; but as this is a common-law certiorari, no costs are given.