
    FELIX McCARDLE, administrator, plaintiff in error, v. N. J. FOGARTY, defendant in error.
    (Atlanta,
    January Term, 1871.)
    CERTIORARI.—The errors complained ¡of in the petition for certiorari were sufficient in law to have authorized the Judge to have sanctioned the certiorari and it was error to refuse to do so.
    Physician. Certiorari. Witness. Before Judge Johnson. Muscogee County. Chambers, May, 1870.
    Fogarty sued McCardle as administrator of BrassillS' uppn an open account for $31 25, in a-.Justice’s Court. All the items of the account were for medicines furnished to various *persons (we suppose members of -deceased’s family) except five, which were for visits, prescription and medicine, and amounted to $18 50. The account was made out# in favor of “N. J. Fogarty, M. D.,” and against “the estate of Thomas Brassill.” McCardle, in person, pleaded in writing that said account “is unjust in all particulars” and that “Fogarty never was known in this city as a medicial doctor.” The Justice suggested that said pleas were informal, and proposed to draw them in form, and thereupon wrote out what he called the general issue, but put nothing in it denying Fog-arty’s right to charge as physician. Supposing it was all right, the trial was had under said pleading.
    Fogarty then testified that his said services and medicines were worth the sums charged therefor in said account, and that the account was correct. Upon cross-examination, he denied that he had stated to McCardle that he charged nothing for the medicine charged at $2 00 in said account, and said if such thing occurred it applied to some other article gotten by deceased himself. He admitted that he was not licensed as a physician, but said he was a licensed apothecary. McCardle then testified that Fogarty did tell him that he charged nothing for said item charged at $2 00. The Justice- gave judgment against McCardle, as administrator, for the full amount of said account.
    A certiorari in proper form, etc., stating the foregoing facts, was presented to Judge Johnson, asking a reversal upon the grounds that said account did not exhibit any indebtedness of said intestate in his lifetime, nor any of said administrator as such; because Fogarty was allowed to testify in his own behalf ; because under Fogarty’s admission he was not entitled to any recovery on said account, and because he had no right to a iud<nnent for said $2 00. Judge Johnson refused to sanction the certiorari, and that is assigned as error.
    Moses & Downing, for plaintiff in error,
    said Fogarty was not a competent witness: Code, sec. 3798; 37th Ga. R., 586, 623; 39th, 186; 40th, 491.
    *No appearance for defendant.
   WARNER, J.

In our judgment, the errors complained of in the petition for certiorari were sufficient, in law, to have authorized the Judge to have sanctioned the same: Code, 3977, 3980; Constitution 1868, paragraph 2, section 3, Article V. And it was error to refuse to do so.

Let the judgment of the Court below be reversed.  