
    Isaac Morris v. George Creel and Others.
    Contempt — Attachment against Clerk  —Case at Bar,— A paper submitted to the Executive Council for the purpose of enabling it to perform its Executive functions, and filed amongst its papers ought not be withdrawn by the Clerk, without the order of the Council; and, therefore, no Attachment should he awarded against the Clerk for refusing to obey a Subpoena duces tecum, commanding him to bring with him that paper, to be read in evidence in a suit between two individuals.
    
      
      See monographic note on “Contempts” appended to Wells v. Com., 21 Gratt. 500; monographic note on “Attachments” appended to Lancaster v. Wilson, 27 Gratt. 624.
    
   After the decision made in this Case by the General Court, in November, 1814, that an Attachment should not issue against the witness, until a rule bad been served on him, to shew cause why it should not issue, (and which is reported in the Virginia Cases, 1 vol. p. 333,) the cause came on again before the Superior Court of Law for Ohio county, to which place the venue had been changed.

At the April Term of that Court, 1815, the Plaintiff proved to the satisfaction of the Court, that the Subpoena duces tecum before awarded, had been regularly served upon William Robertson, the clerk of the Executive Council of Virginia, by which he was commanded to attend the Court as a witness, and to bring with him in evidence *a certain memorial to the Executive, addressed, &c. and the said witness being solemnly called, and not appearing, it was ordered, that the said William Robertson should shew cause on the first day of the next Term why an Attachment for such his contempt should not be awarded against him.

At the ensuing Term in September, the rule having been served on him, the said William Robertson appeared by Attorney, and shewed for cause : 1. That the paper in the Subpoena mentioned, is upon file among the papers of the Executive Council, and as such cannot be withdrawn by the Clerk without an order of Council. 2. That the paper in the Subpoena mentioned, was submitted to the Executive Council, for public purposes, to enable the Council to determine upon the conduct of Executive Officers, and cannot be withdrawn for the purpose of subjecting the persons subscribing the same to- an action for defamation. 3. That the Clerk of the Executive Council is not bound to attend any Court, and bring with him any paper filed in the office, upon a Subpoena duces tecum directed to him, without an order of Council directing and authorising him so to do.

The Plaintiff, notwithstanding these reasons assigned, moved the Court for an Attachment. The Superior Court adjourned the question to this Court.

The General Court gave the following judgment :

“ The Court having maturely considered the question adjourned, doth, by the unanimous opinion of the Judges present, decide, that a paper submitted to the Executive Council for the purpose of enabling it to perform its Executive functions, and filed among its papers, ought not to be withdrawn by the Clerk, without its order ; and, therefore, that an Attachment ought not to be awarded.”  