New Orleans Republican. [volume] (New Orleans, La) 1867-1878, 1874-04-17
First District Court.

First District Court.
INFORMATIoNs FILED.
Assault with dangerous weapon-Arthur
Dejean.
Assault and battery-George Howard,
Nicola COltOur.
Unlawtully employing sailors-W. Cain,
William Morrison.
Larceny-Caroline Alfred. Mary Narcisse.
Mollie Peyton. Edmond McGraw. Henrietta
Hall, Emma Scott, Caroline Bell, Caroline
Simmons.
Fifth District Cssrs.
The following is the oval opinion of Judge
Cultom rendered ON Friday, the tenth in
slant.
+. Peters VS. Eugene Staes. Justice of the
Second Municipal Court petitioner
represents that he has been illegally de-
prived of his liberty by order of Police JUS
tice Staes, who, he AYERS, acted without
jurisdiction in the premises. That by vir-
tue of his order of arrest and Imprisonment
the sheriff Of the Criminal Court of the
parish Of Orleans has arrested and confined
him in the Parish Prison contrary to law
and in violation of his rights. He alleges
that said police justice in thus committing
him for contempt, acted without authority
of law and exceeded bis Jurisdiction as de-
fined by it. He pravs for writ of habeas
corpus and for notice upon the keeper OF
the prison to show cause why he should not
be restored to his liberty. Service was
made &C cOrding to law, and the officer has
sworn to and tiled his answer. The COM
mitment shows that the police Justice COM
mitted him to prison for twenty-four hours.
or until he should deliver in his court s. 30
and bunch of keys, which the petitioner
had in his possession as an officer of police
The evidence shows that one Berthelot had
been arrested for inebriatiOn the night be-
fore and taken by Metropolitan policeman
=, 1,svI
there locked up. When taken there his peck
cts were empried by the policeman and the
contents s. 30 and bunch of keys) deliv-
cred to petitioner as the property clerk. On
the next morning the arrested party was
taken before the police justice, and fined
81 80. After the trial and sentence, the
justice ordered the petitioner to produce
the s. 30 and bunch Of keys in court. He
refused to do so, on the ground that the JUS
tce had no authority for the order, nor
legal power to issue it. ThereupOn, and
without a trial of any kind. the magistrate
adjudged him guilty of contempt, and
ordered him to be imprisoned for twenty
four hours or until such time as he would
comply with the said order OF the court
Article S22 of the Code Of Practice pro-
vides: If it appear to the judge from the
return to the writ, or from the accompany
ing documents, that the party is confined
by order OF some tribunal, ne can only re-
store such party to liberty in the following
cases:
L. Where such tribunal has exceeded it's
jurisdiction as defined by law:
In order to ascertain whether the Justice
acted within the purview of his authority,
in the premises, it is necessary TO ascertain:
First, what his duties are; second, what the
petitioners duties were; third, whether the
justices first order was such as ne was au-
rhOrZaI n and fonrth uhathar 70
property clerk, petitioner, could legally
have Obeyed it. First, then, the justices
duty was to cause the appearancej of the
inebriate before his court, hear the evi
Gence and pronounce his judgment This
was the extent of his duties and when he
sentenced him to pay fine of s. So his
functions terminated; second. the petit
toners duty, as the property clerk, was to
deliver whatever may have been taken
from the prisoner, to him, and no one else
(see Rays Revised Statutes, section 2269),
as soon as the court had pronounced upon
his case. He is required by law so to do,
and would not have been protected BY
delivery of the money and keys to any
other person. They were. in the hands Of
the property clerk, as fully in cuStOdia legis
land more SOL as if be had taken them
into court More SO, because the law de-
clares that he shall keep and deliver them
to the owner, and, except for purposes of
evidence, the justice has no earthly author
ity over or concerning them beyond this
Once in the custody of the law officer they
are beyond any further pursuit. If the jus
tice had had civil jurisdiction, and proceed
ings had been regularly taken out for the
purpose OF garnishing or Selling these
things. the sheriff and constable would
have found it legally impossible to make
the seizure. If their abstraction by duly
authenticated writ would not have been
sanctioned, can courts of law tolerate it by
a less formal and more arbitrary manner!
BY reference to English authorities, Leon
ard, 30, 264; Priv. Londin. 265; Comyn's
Digest, Attachment d, Bacon's Abridge.
ment, Customs of London, H., it will be
seen that the courts of London have held
with great uniformity that all attemps to
reach money in the hands of law officers,
such as sheritfs. cOnstables, etc., held. by
them in their official capacities, by garnish-
ment, attachment, ETC., have been foiled.
In this case the justice, in fning the pris-
oner, had not ordered the payment of the
specific sum in the hands of the petitioner,
but only the payment of a certain sum. See
the case of Turner VS.. Fendall, l Cranch
III. and see also the case of First vs. Mil
Ter. 4 Bibb 81, where the court said:
While the money remains in the hands
Of the officer, it is in the custody of
the law. See Robinson VS.. Howard,
Cushing PSI; Morris VS.. Penniman, IA Gray
22O. Massachusetts, Maryland, North Car
DINA, South Carolina, Alabama, Tennessee.
Illinois Missouri and California have all
settled this doctrine. See Drake on Attach
ment, section SOB. In this case the petition
er had possession of the money and keys,
rirtute oticii, and as the justice had made
MIN no party to any proceedings looking to
his divestitnre of them, his order, made
after the case was tried and finally disposed
OF, was simply coram non j,tdice. II that be
conceded then he had no authority to pun
ish tor contempt. Article 100 of the Code
OF Practice provides that "All Judges
possess the powers necessary for the exer-
else oil their respective jurisdictions, though
the same be not expressly given by law"
Where was the jurisdiction of the Justice
over the money in question, or over the
otncer IN charge of it, any further than to
order him to return 1t to the prisoner then
before him! He had not decreed the deliv
cry OF that specific sum, nor had he had the |
officer before him to show cause why the |
money should not be delivered out of the |
custody OF the law into his hands, who is |
not by law authorized to have anything to |
do with 1t, except to use it as evidence. The |
case OF the prisoner had been tried and dis |
posed OF. and therefore, he could not, and |
did not require its production for evidence |
before him. Proceedings for contempt, in |
cases Of this kind are regarded and always |
conducted as an Independent proceeding
or suit: 22O Eng. l.. and Eq Reports,
page 80; % Vermont Reports, $50; |
q COnnec ticut Report. lS5. Now suppose |
that rule had been taken on the plaintiff |