The daily dispatch. [volume] (Richmond [Va.]) 1850-1884, 1868-02-11

objections.
A resolution of Mr.. Smiths providing
that all persons engaged in selling fresh
meats within two hundred yards of the
market shall be subjected to the same re-
strictions enforced upon the butchers in
the market was adopted.
A resolution appropriating $500 to repair
the smallpox hospital on Navy Hill was
adopted.
After transacting some other business
the Council adjourned.
UNITED STATES CIRCUIT CoURT-CAsE
OF CHURCHwELL CoMBS-OPINIoN OF THE
CoURT.-The court was opened in due
form on yesterday, and the Judge pro-
ceeded to read the following opinion in the
case of Churchwcll Combs upon writ of
habeas corpus to release him from confine-
ment in the Libby prison:
"This court is limited in its nature by
the Constitution of the United States and
the laws of Congress. 1t has no general
or common law powers. It's practice or
mode of procedure in some cases, as we'll
as the extent Of its jurisdiction in all cases,
depends not upon the common law, but
upon statutory prescription. After care
full examination of all the acts Of Congress
and decisions of the courts cited by the
very able counsel on both sides we are of
the opinion that in this court an affidavit
is necessary from either the party petit
tioning for writ of habeas corpus, or, in
case of his inability, from some other per-
son who is able to state on oath facts and
circumstances affording reasonable pre-
sumption Of Imprisonment or violation of
some law of Congress, or of the United
States Constitution, before the writ in
question can properly be issued.
eve are also of the opinion that, contrary
to the former practice of this court, the
laws of Congress imperatively require both
the seal of notary public and certifi-
cate of the proper officer Of the notary's
authority and identity before his signature
can make a paper subscribed by him
legal affidavit in this court, and conse-
auently that the District Judge erred IN
allowing the writ to issue in this case.
elf the case should proceed to argument
on its merits, and be decided against the
petitioner, and he should desire to appeal
to the Supreme Court, the error might,
before that tribunal, prove very disastrous
and unfortunate to him. 1t IS better,
therefore, in our Judgment, that the mis-
take should be corrected here and now
by taking the affidavit before United
States officer, issuing new writ, allowing
the same, or an amended return, to be made !;
all of which is the work of but a few mi
nutes. Thus the case could be presented
in form which would not embarrass the
petitioner if he should desire an appeal.
"Should this course be taken, the case
could proceed on its merits whenever 1t
shall suit the convenience of counsel.
"The motion to dismiss the petition and
writ is therefore sustained, and the prlso-
ner is remanded to the custody of Major
Vance"
Immediately after this decision Of the
court. Colonel Ould, counsel for the pri-
soner, drew up and presented to the court
a new petition, but embodying the same
facts and circumstances as the former one.
To this petition the following affidavit and
order of the court was annexed: -rt
"Sworn and subscribed to before me
this 10th day of February, A. D. 1868, in
the Office of District Court, city of Rich
mond. b. ". HUNTER,
"Deputy Clerk"
"Let the writ Of habeas corpus, as
prayed for in the foregoing petition, be
issued, returnable at the courtroom OF the
United States Circuit and District Courts,
in the custom-house, Richmond, on the
18th instant, at 10 o'clock A. NJ.
"JoHN G. UNDERWOOD,
"District Judge"
The case will come before the court
again on Friday next, when the argument
mon its merits will be heard. Mr..
Chandler will represent the Government.
The following order of the Supreme Court
of the United States, issued at its Decem.
ber torn, 1867, was received in this court
on yesterday:
"Rule No. 81.
Appearance-Notice Of Motions.-Or'
dersd. That upon the filing of the tran.
script of q record brought up by writ o.
error or appeal, the appearance OF the
counsel @ for the plaintiff in error or appel
LIANT shall be entered. and no motion to
dismiss, except on special assignment oy
the court, shall be heard, unless previous
notice has been given to the adverse party
or. the counsel or attorney of such party