New Orleans Republican. [volume] (New Orleans, La) 1867-1878, 1876-01-08
COURT RECORD.
FRIDAY, JANUARY 7, 1876.

United States Supreme Court.
The following case was submitted Janu-
airy 4:
Haines ct al. vs.. Carpenter ct al-Appeal
from the Circuit Court for Louisiana. This
ia a suit of the appellants as trustees OF the
Baptist Church Of Vicksburg to recover Of
the appellee, Carpenter, ex-executor, and
Others under devise for the benefit of the
church made in the will of one Mr.. Groves,
Of Madison parish, Louisiana. The bill
charged conspiracy between Carpenter,
as trustee, and the other defend
ants, to have unfounded claims es-
tablished against the estate in succession.
in fraud Of the rights of the church. The
court below sustained demurrer to the bill,
on the grounds, first, that exclusive jur1-
diction of the subject matter of the suit
was vested in the courts of the State; and.
second, that the matters complained of
we're not subject to the equity powers OF
the United States courts. 1t is here con-
tended otherwise, and the case of Jayne vs..
Hook, Wallace, 425, is cited as q case in
point, on the authority of which it said
there must be reversal. Case submitted
on the brief Of Joseph Casey for appe liant.
sppe lice not appearing.
Superior District Court.
Southern Bank vs.. Louisiana National
Bank. On trial.
superior CflmI00l COurts
ACQUITTED.
Assaultirg police oficer-Thomas Gal
lagher, Edward Bermudez and Michael
Gibbons, assaulting Officer P. Mcnamara,
on the twenty fifth of November, 1875.
PLEADED GUILTY.
Assault and battery, etc.-A. j. Helmke,
charged with assault on Sheriff f. S. Wurz-
burger, on the thirtieth Of November, 1875,
1n&& rcahnW Mt h1n
duty, withdrew his plea of not guilty, and
pleaded guilty. Released until sentence,
on $500 bail.
Grand larcepy-Paul Bell, convicted of
having stolen, on November 90. 1875, from
w. j. Grady, $l06 and two goll watches,
valued ut $40, two years in the State Peni-
Tertiary.
Assaulting police oficer-Paul Brown,
convicted OF having assaulted Officer Neil
Brown, November Is, 1875. six months in
the Parish Prison.
First District Court.
sENTENcED.
Assault and battery-Julie Ann johnson,
ten days Parish Prison.
Assault-James and Stephen Chaleron,
convicted of assaulting V. E. Mccarthy on
the eighth of September, 1879, ten cents
fine or imprisonment OF one minute.
Third District Court.
Judge Meunier rendered the following
decision:
w. 3. Bird vs.. T. p. feathers, captain
and owner of steamboat Natchez.
On the trial of this cause, plaintiffs couu-
eel, willing to offer in evidence the depOsi-
tions of witnesses taken under three COM
missions issued from the lower court, the
counsel for the defendant objected to the
reading OF said dispositions as being mad
missible, on the ground that tie commits
eions under which they were taken, being
signed by ono Paris Childress, styling him
self clerk of the Second Justice Court. are
illegal and null, and therefore vested the
commissioners with 70 authority to act
The three commissions are directed to ''any
| Judge, justice of the peace, or any person
authorized to administer Oaths," and con-
tain the following authoritative language:
know We, that we. reposing confidence in
your prudence and fidelity, do, by these
presents, give you authority diligently to
examine the Witnesses" etc. They bear
the signature of Paris Childress, clerk"
Article 425 of the Code OF Practice provides
as follows: "If the witnesses whom either
| the plaintiff or defendant wish to be heard
| reside out Of the parish in which the suit is
pending, such plaintiff or defendant shall
| be entitled to obtain from the court a com
j
| the peace where such witnesses reside, to
| take their depOsi'ions."
Bv article ll55 of the same code, "the
| justices of the peace may grant commissions
| to take the testimony OF witnesses in cases
| instituted before them when such witnesses
reside out of the parish" Under these two
| articles of the Code OF Practice, the grant
| ing or issuing of commissions to take the
| testimony of witnesses in and out Of the
| Ind; al 1T "a RI
| thorize a magistrate to execute such COM
| missions was attributed by law unto the dis
| trict Judges and the justices OF the peace
alone up to March %, 1923, when the Legis-
| lature enacted a law providing that COM
| missions to take dispositions Of witnesses in
| civil matters may be issued either by the
| Judge before whom the suit is brought or
! bv the clerk of the court. BY the act of
| March 8, 1855, defining the duties of clerks
| of district courts generally" section three,
| the Legislature, in order to facilitate the
| speedy administration of Justice, has again
| conferred upon the clerks of those courts
| the authority to issue commissions to take
| the dispositions Of witnesses residing In or
| out of the parish or State, modifying thereby
| the dispositions of articles 425 and 1855 OF
| the Code of Practice, under which the dis
! trlct Judges and the justices Of the peace
| alone had the power to issue commissions in
civil matters pending before their respective
courts. The acts of March, 1928, and March
| 9, 1856, clothing the clerks OF district courts
| generally with authority to issue connie
sions must be strictly interpreted; the
meaning of their language can not be SO
strained as to permit TO cOnstrue them as
| extending such an authority to the clerks
| of the justices OF the peace. There is no
| such officer known to the law as q clerk of
= Justice court The clerk of a Justice OF
| the peace is q person in the employment OF
| the Judge from whom he receives q monthly
| salary Tor his services. He is neither a
sworn nor commissioned officer, and has,
| therefore, no legal existence. Being merely
clerk to the justice of the peace, and hav.
| ing no official capacity, he is without any
power to issue, Under his individual sigma
| ture. commission authorizing magistrate
or commissioner to take the dispositions OF
Witnesses. Memo jus ad alum transferre
potest quod sc ipse non habet. A commits
sion is not an idle formality, but the COM
missioners authority to act. When it is
illegal his acts are null. G. p, arts. 42J
| and 1l55. Sublato eundement cadit opus.
at is therefore ordered and decreed, that
| the objection raised to the introduction
| in evidence Of the testimony taken under
the three commissions issued in the within
case under the signature of Paris Childress,
clerk of the second justice of the peace, be
maintained and it is further ordered and
decreed. that the judgment appealed from
be avoided and reversed, and the case re-
manded before the lower court, to be pro.
ceeded with according to law. Plaintiff
and appellee paying costs of appeal"
New Idea for PASSENGER Trains.