9 Ga. 471 | Ga. | 1851
delivering the opinion.
At the April Term, 1842, of the Justice’s Court in and for the 549th Militia District of this State, Philip Fitzgerald recovered nine judgments against Bennet Youngblood 'and Sandford Adams. On the 30th day of the same month, executions were issued upon these judgments by John Lunmas, a Magistrate of the District. On the 31st day of March, 1849, these fi. fas. were levied, by the Constable, on the property of Adams, one of the defendants, who made oath, that the same were proceeding illegally against him, upon the ground that he was never summoned to appear and defend said suits, nor had he any notice of the pendency thereof; that no warrants were ever issued or copies served in the cases, or service acknowledged, or judgments confessed, either by himself or any other person duly authorized by him for this purpose..
On the trial of the illegality, Archibald McEaehern was introduced, who testified that he was Constable of the 549th District in 1842, and that he had no recollection of serving Adams with copies of the summonses in these cases; that there were frequently two Constables acting in the district at the same time, but his impression was, that there was but one in 1842.
To this 'testimony the plaintiff objected, as secondary and inferior — no search having been made for the original papers in the cases; but the objection was overruled, and a verdict rendered for defendant.
A certiorari was applied for and obtained, but dismissed upon the hearing, and the decision of the Justice’s Court, setting aside the fi. fas. sustained. Was the parol proof admissible on the original trial ?
Thus, where oaths are required to be taken in open Court, where a record of the oath is made, or before a particular officer whose duty it is to certify it, or where an appointment to an additional office is required to be made and certified on the back of the party’s former commission, the written evidence must be produced. Treatise on Evidence, vol. 1, §§82, 85, 86.
We are all of the opinion, that the judgment must be reversed, and the certiorari sustained.