Green a. Wood.

held not enough to satisfy the requirements of section 391 of the Code; for unless other and good cause be shown, the Code is imperative that an examination of either party, at the option of the other, may be had before the trial.

We think no "good cause" was shown for not submitting to an examination in this action; and that none being shown, it was the right of the plaintiff to be permitted to examine the defendant, and that the order appealed from must be reversed.*

In the case of Garighe a. Losche (New York Superior Court; At Chambers, October, 1857), an application was made upon affidavit for an order for the examination of the plaintiff before trial. The order asked for, among other things, directed the plaintiff to produce certain books and papers, or show cause why he should not produce them.

Mr. Bryan, for the application.

HOFFMAN, J.-It is not the proper practice to make an order in such cases. The notice, specifying the time and place of the examination, and naming the judge before whom it is to be had, is sufficient without an order.

Section 392 provides that the party to be examined, as in the last section provided, shall be compelled to attend in the same manner as a witness who is to be examined conditionally. And it appears to be considered as necessary that a summons should be issued by the judge, such as was issued under the Revised Statutes, upon a conditional examination (2 Rev. Stats., 393, § 10). The form of such a summons is to be found in the Appendix to Burrill's Practice (3 Burr. Pr., 482). Section 391 of the Code seems also to refer to such a proceeding, providing that the party shall only be compelled to attend in the county of his residence, or where he may be served with a summons for his attendance.

Mr. Justice Roosevelt, in Bleecker v. Carroll (2 Abbotts' Pr. R., 82), decides that a subpoena is not proper, but a summons is the proper course, which is defined in the statute to be "a requisition under the hand of the judge or officer issuing the same." (See also Jarvis v..Clerk, 12 N. Y. Leg. Obs., 129.) Both the notice, then, under section 391, and the summons under the Revised Statutes, appear necessary, at least, to lay the ground for a punishment or process.

In relation to the proceedings against a party, it may be noticed that section 392 prescribes that to obtain attendance the course shall be such as in the case of a witness examined conditionally. Section 54 of the Revised Statutes (2 Rev. Stats.", 401) directs the mode of serving a summons; section 55 prescribes a liability to damages and a forfeiture of $50, and section 56 authorizes the issuing of a warrant to the sheriff by the judge or officer to bring the witness up to be examined, in case of his failure to attend. Section 57 provides for the case of his refusing to answer. Other sections relate to the form and nature of the warrant.

Section 394 of the Code, however, provides that if the party refuse to attend and testify, he may be punished as for a contempt, and his complaint, answer, or reply may be stricken out.

Thus, then, if the applicant finds it most important to have the actual examination, he may procure the attendance by the warrant under the statute; if he is content with the remedy given by section 394, he may adopt that, and no

The People on rel. The Superintendents, &c., of Cortland County a. Duell.

THE PEOPLE on the relation of THE SUPERINTENDENTS OF THE POOR OF CORTLAND COUNTY a. DUELL.

Supreme Court, Sixth District; Special Term, February, 1858. EXAMINATION OF PARTY.-CERTIORARI.

The provisions of the Code, allowing the examination of parties, have no application to proceedings in courts of sessions.

The defendant, in proceedings in a case of bastardy, cannot be sworn on his own behalf.

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.

doubt proceed as for the contempt, and also have the pleading stricken out, or have either of these modes of redress. The general statute as to contempts (2 Rev. Stats., 535, § 1, subd. 5) covers the case of persons summoned as witnesses, and refusing to obey the summons, or to be examined.

The counsel has made it part of the order which he submits, that the party produce certain books, &c., relating to the matters in question. I apprehend that the course in such a case is by the subpoena duces tecum. (Jarvis v. Clerk, 12 N. Y. Leg. Obs., 129.)

The following summons was signed by the judge.

TITLE OF THE CAUSE

By M. H., a justice of the Superior Court, you, R. G., are hereby summoned to appear and attend before me, at the special term (Chambers) of the Superior Court of the city of New York, at the City Hall in said city, on Monday, the 12th day of October instant, at 10 o'clock in the forenoon of that day, to be examined as a witness, and to give testimony pursuant to the provisions of the statute entitled "Of taking conditionally the testimony of witnesses without this State," and to the 390th and 391st sections of the Code of Procedure, at the instance of the defendant, in a cause pending in the said court between you the said R. G., as plaintiff, and P. A. L., as defendant; and in case of your refusal or failure to attend and testify, you will be liable to be punished as for a contempt, and your complaint may be stricken out.

Witness my hand this 6th day of October, in the year one thousand eight hundred and fifty-seven. M. H., A Justice of the Superior Court of the City of New York.

As to the remedy of the party claiming the examination, for the neglect or refusal of the adverse party to attend, see Leeds a. Brown (5 Abbotts' Pr. R., 418), in which case Mr. Justice Roosevelt, to some extent, qualified the opinion he had expressed in Bleecker a. Carroll, supra.

The People on rel. The Superintendents, &c., of Cortland County a. Duell. 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.

MASON, J.-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

The People on rel. The Superintendents, &c., of Cortland County a. Duell. 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 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. 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 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.

Totten a. Monell.

TOTTEN a. MONELL.

New York Common Pleas; General Term, April, 1858.

EXAMINATION OF PARTIES.-REQUISITE NOTICE.

In an action in a justice's court, the notice of the intended examination of a party, under section 399 of the Code, is in time, if it is served within the required number of days before the day on which the trial actually takes place, without reference to the time of the return of the process.

It seems, that if the trial is had before the required number of days have elapsed, the party cannot be examined, although his notice was served at the commencement of the action.

Appeal from judgment of the District Court of the first judicial district of the city of New York.

The facts are sufficiently stated in the opinion.

BY THE COURT.-BRADY, J.-The defendant was sued in the District Court for the first judicial district of this city, by summons issued December 29, 1857, which, together with a verified complaint, and a notice of the intended examination of the defendant in his own behalf, was served on December 31, 1857, the summons being returnable on January 8, 1858. On the return day, the cause was duly adjourned to January 15, 1858, and no other notice of the examination of the plaintiff was served.

Upon the trial, the defendant objected to the examination of the plaintiff, upon the grounds that the notice should have been served ten days before the return day in the summons, and that, if the plaintiff could not have been examined on that day under the notice served, he could not be at any subsequent period.

The statute referred to (Code, § 399) provides that a party may be examined in his own behalf, the same as any other witness, but that such examination shall not be had unless ten days' notice of such intended examination shall be given in writing to the adverse party. The notice relates to the trial,

* By the amendment of 1858, it is provided, that in all other cases than actions in courts of record, where ten days notice is still requisite, the length of notice shall be four days.