Evening star. [volume] (Washington, D.C.) 1854-1972, 1904-05-04

justice wright Held that the question put
TO Mr.. Elliott cid not require or call upon
him to divulge a privileged communication
and required the witness to answer the
question. The court gave Mr.. Elliott OPP
portunIty to communicate with the person
for whom witness had made the ememoran-
da. and deferred further action until the fol-
lowing day.
Again Declined to Answer.
On the following day. Mr. Elliott appeared
in court and again declined to answer the
question on the ground that the question
was irrelevant and immaterial and that he
was privileged by reason of the relation of
attorney and client existing between him
and the person from answering the ques-
ton and that II was his duty as such at
torney rot to answer the question; and on
the further ground that he. at the request
OF the person for whom the memoranda was
prepared. promised not to divulge the name
and id"Etity of the person. OF the fact that
he had prepared memoranda for a will, as
he. the testator. had good reasons of his
own Cor not letting any one know he had
made will; thereupon he gave his solemn
pledge rot to divulge anything about the
business. without the testator's permission
to do So
Justice Wright adjudged Mr.. Elliott to be
In contempt of court for his refusal to an
swer the question, and committed him to
jail to be held until he should signify his
readiness to answer the question.
hitting Mr.. Elliott for the supposed con-
tempt, stated in open court that the reason
for his action was that he did not believe
Mr.. Elliott ever had client for whom he
made memoranda for WILL
Mr.. Elliott held that he was entitled to be
privileged from answering the question.
and that the order and commitment for re-
fusal to answer was and Is without au-
thority of law, and he made application for
writ of habeas corpus. Upon this appli-
cation, addressed to the Supreme Court OF
the District of Columbia. the chief justice
of the court. on February IL. directed the
writ of habeaS corpus to be issued, and had IL
made returnable before Justice Wright the
justice before whom the trial was had and
who had adjudged the petitioner to De
guilty of contempt of court for refusal 10
answer the question, and who had by his
order committed the prisoner to prison. me
writ was issued as directed. the warden
made return To the return thus made Mr.
Elliott demurred upon the ground that the
return did not show legal and sufficient
cause for the commitment and the deten-
ton of the petitioner. The demurrer was
oyerruled by Mr.. Justice Wright, the writ
discharged or quashed. the petition as
missed and Mr.. Elliott was remanded 10
prison. 1t is from this order, refusing to
discharge and remandng the petitioner 10
jail that this appeal was taken by Mr.
Elliott and which the Court Oh Appears uo
cided in his favor.
Opinion Of the Court.
at is first objected or the part OF the
appellant that there was error In the issa-
anee of the writ in making 1t returnable
before Justice Wright instead of the Su-
preme Court of the District. to which the
appllca ton for the writ was made. This
objection is based upon the terms of the
code of the District. chapter 81 tit habeas
corpus BY section 1143 of the code IL IL
provided that any person being IN prison
may apply by petition to the supreme
80 no
thereof for the writ of habeas corpus. 10
the end that the cause of such commit
ment. detention. confinement or restraint
may be inquired into; and the court or JUS
tice applied to- IL the facts set forth in
the petition make a prima facie case, shall
forthwith grant such writ, directed TO the
officer or other person In whose custody OF
keeping the party shall be, returnapie
forthwith before said court or justice.
And by section HIS, it Is provided, that
upon the return of the writ and the produc-
tor of the prisoner the court or justice
shall Immediately inquire into the legality
and propriety of such confinement or de-
tention. and IL 1t shall appear that such
person is detained without legal warrant
leased or discharged; or IL the court or
justice shall deem his detention to be
lawful and proper he shall de remanded to
the same custody, &c
Terms Not Synonymous.
sit Is quite obvious that the term JUS
tice' is not intended to be synonymous with
court nor court with the term justice
as used in these sections of the code.
while clothed with the same power. the
court and justices are authorized to act
separately and distinct from each other In
the matter OF habeas corpus, as under the
English habeas corpus act of 81 Car, c..
Q Hence when an application Is made for
the writ of habeas corpus, either to the
court or to justice thereof, the return
Is required by the terms of the statute not
to the court simply, but before said court
or justice. by whose order the writ was is
sued 1t was certainly never intended that
a person applying to court composed of
several judges. any one OF whom. not dis
qualified, being competent to act as and for
the court, should be compellable to have
the question of the legality of his imprison-
ment decided and disposed of by one of the
justices of the court, by whose predeter-
mination and decision the party had been
upon full consideration committed to and
detained in prison. 1t Is manifest IL the
application for the writ had been made to
Mr.. Justice Wright, he would not have
granted the writ, and II that apparently