The People ex rel. Superintendents of Poor, &c. agt. Duell and others. ground that the property was sold much below its value. On notice to the various purchasers, none object to it but one. The defendants' affidavits tend to show, that the property sold for one-fifth of its value. The purchaser who objects, admits that what he bought, sold for less than half its value. The sale was advertised for one day, and postponed to another, by the plaintiff, on account of the extremely low prices at which sales were made. The motion to rescind the sales as to those who do not oppose, must be granted as by default; as to the other, he does not strenuously oppose, but he should receive a fair indemnity for his costs and counsel fees, and something for the loss of a bargain. Let him be paid $250, to cover all his losses, and in lieu of the gain that he might have made, and let the property be re-advertised, the defendants also paying to the plaintiff $10, the costs of this motion, and all the costs of the former advertisement of sale. SUPREME COURT. The People ex rel. THE SUPERINTENDENTS OF THE POOR OF CORTLAND COUNTY agt. R. H. DUELL, County Judge, and others, justices of Cortland County Sessions. A defendant who is proceeded against under the statute, charged with being the father of a bastard child, cannot be sworn as a witness (although notice has been duly given) in his own behalf. Section 399 of the Code, has no application to bastardy proceedings, under our statute. In the first place, the Code has no application to a court of sessions; nor to courts of oyer and terminer. In the second place, § 471 of the Code, excepts from its operation special statutory remedies not before obtained by action; like the present proceedings in bastardy. The common law never gave an action against the putative father of a bastard child. A common law certiorari, issued to bring up the judgment and proceeding 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 ex rel. Superintendents of Poor, &c. agt. Duell and others. Broome Special Term, February, 1858. On the 2d day of April, 1857, two justices of the peace, of the county of Cortland, made an order of filiation, against one Eli 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 the 399th section 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 therefore the superintendents sued out a common law certiorari, directed to the said court of sessions, to which a return was made, embracing the above facts. HORATIO BALLARD, attorney for plaintiffs. MASON, Justice. 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, The People ex rel. Superintendents of Poor, &c. agt. Duell and others. 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 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." Now, 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 Blackstone's 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. (Barbour's Crim inal Law, 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 on this common law certiorari. But I am satisfied that 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 ex rel. Shipman agt. The Overseers of the Poor of the town of Barton, 6 How. 25; The People ex rel. Crandall agt. The Overseers of the Poor of the town of Ontario, 15 Barb. 286; Haviland agt. White and White, The Board of Commissioners of Excise of Saratoga County agt. Doherty. Overseers, &c., 7 How. 154; The People ex rel. Bodine agt. Goodrich and others, 1 Selden 568.) The proceedings must be affirmed therefore; but, as this is a common law certiorari, no costs are given. SARATOGA COUNTY COURT. THE BOARD OF COMMISSIONERS OF EXCISE OF Saratoga • COUNTY, Respondents agt. JAMES DOHERTY, Appellant. Section 13 of the act entitled, "An act to suppress intemperance, and to regulate the sale of intoxicating liquors," passed April 16, 1857, reads as follows: "Whoever shall sell any strong or spirituous liquors or wines in quantities less than five gallons at a time, without having a license therefor, granted as herein provided, shall forfeit the sum of fifty dollars for each offence." By section one of this act, it is provided that the commissioners of excise, "shall bo known as the board of commissioners of excise," &c. And section 22 of the act provides that "the penalties imposed by this act, except the penalties provided for by sections eight, fifteen and nineteen, shall be sued for and recovered in the name of the board of commissioners of excise." Therefore an action brought to recover the forfeiture contained in section 13 is properly brought in the name of The Board of Commissioners of Excise. Where the summons in such action was returned by the constable indorsed in this way: Personally served on this 4th day of September, 1857, B. Goeway constable," held sufficient. It was not necessary to serve a copy of the summons unless it was demanded. And it must be presumed that the service was made in the proper county, for it was the duty of the constable to do so. Where the summons was indorsed by the justice who issued it as follows: "This summons is issued according to the provisions of section 13 of an act entitled an act to suppress intemperance, and to regulate the sale of intoxicating liquors, passed April 16, 1857, L. G. Hoffman, Justice of the Peace;" held, that such indorsement was sufficient. If it is necessary to serve this indorsement (which is questionable) there is nothing requiring the constable to return that he has served it, unless the return "personally served" written on the summons, is presumed to refer to both the summons and indorsement. Where an affidavit is made for the purpose of removing a cause from before the justice, on the ground that he is a material witness for the party; it must show that the justice is a necessary, as well as a material witness. And the justice has a right to judge of its sufficiency. KARVAR LAW SCHOOL LIRARY. NEW-YORK PRACTICE REPORTS. The Board of Commissioners of Excise of Saratoga County agt. Doherty A just construction of this act as a whole, requires that the commissioners shall December Term, 1857. On the 10th day of September, 1857, L. G. Hoffman, Esq., Justice of the Peace of the town of Waterford, rendered a judgment in favor of the plaintiff and against the defendant, for $50 damages, and $1.63 costs. The defendant appeals. S. H. FOSTER and J. I. HOUSE, for the appellant. MCKEAN, County Judge. This action was brought under section 13 of the act entitled "An act to suppress intemperance, and to regulate the sale of intoxicating liquors," passed April 16, 1857, which reads thus: "Whoever shall sell any strong or spirituous liquors or wines, in quantities less than five gallons at a time, without having a license therefor, granted as herein provided, shall forfeit the sum of fifty dollars for each offence." It is objected by the defendant's counsel, that the action. should have been brought in the name of the individuals who compose the board of commissioners of excise, and not in the name of the board. By section one of this act, it is provided that the commissioners of excise "shall be known as the board of commissioners of excise," &c. Section 22 provides that the "penalties imposed by this act, except the penalties provided for by sections eight, fifteen and nineteen, shall be sued for, and recovered in the name of the board of commissioners of excise." This action is therefore properly brought in that name. The fact that section 22 speaks of penalties, and section 13 |