Hunter v. Hunter

1 Charlton 303

• Court: Chatham Superior Court, Ga.
• Decided: May 15, 1810
• Status: Published

Opinion

Charlton, Judge.

A certiorari issued in this case to remove proceedings in the Mayor’s court, and the error assigned is, that John Hunter was permitted, in the court below, to be a witness in his own cause. This appears, upon the transcript of the record from the court below, and upon the exhibition of this transcript, the certiorari was awarded. It is now moved to quash the writ of certiorari,.no affidavit having been taken or recognisance given. An affidavit is required by our practice, if the facts and errors do not appear upon the proceedings, or record of the court below.

In this case the error is intrinsic, and therefore the defendants below could not have sworn to that error. A recogni-sance is not required by the order of the court directing cer-tiorari to issue, and a recognisance is only necessary where danger would probably result from insolvency or departure beyond the jurisdiction of the court, of the defendants below. The certiorari cannot, therefore, be quashed upon the exceptions taken. The error assigned is, that the plaintiff below was permitted to be sworn, and to give evidence to a fact in his own cause. This error must be so obvious, that it supercedes the necessity of the court’s saying any thing more, than that it must be sustained.

It is ordered, that the cause be remanded to the Mayor’s court, and that that jurisdiction be directed, and it is hereby directed not to receive the testimony of the plaintiff.