Durkee v. Brackett — 1 Cai. 500

Majority

p. 628

*Durkee against Brackett, q. t

Headnote

If a Justice of the peace, in a cause before him, admit a plaintiff to be sworn and testify as a witness in his own cause, this court will grant a rule, or certiorari, as the party may be advised, to have that matter returned.

This was an application for a rule, or certiorari, to be directed to the justice of the peace before whom the cause was tried, requiring him to certify whether Ichabod Brackett, the plaintiff before him, was not by him permitted to be sworn as a witness, and testify in his own cause.

Harison,

in support of the motion. As no bill of exceptions will lie in this case,^[2] the injury will be without rem

p. 629

edy, unless the court, by virtue of their superintending jurisdiction, please to interpose. This they have authority to do from their general controlling power. This differs from the applications to return evidence, because there it would be to assume a right to determine on facts, matters cognizable by a jury alone. The granting of a certiorari is not confined to reasons that appear on the record. In 4 Yin. 842, letter D. pi. 7, tit. Certiorari, the writ was allowed, to inquire whether the defendant, who had pleaded his protection as the Icing's servant, was attending on the Icing for his own business, or the Icing's.

Henry, contra.

This is, in substance, to bring up the fact; and this court has decided it will not oblige a justice to return evidence.^[2] ,^[3]

Take your rule, or certiorari, as you may be advised.

Motion granted.