
    Marsh et al., Appellants, v. Williams.
    Commissioners in chancery are officers of court appointed for a particular purpose, and their powers and duties being limited and defined by the statute, by virtue of which they are appointed, they can exercise no other power than that given them.
    A commissioner in chancery has no power to commit a witness who refuses to testify before him; and should such a power he exercised, and the witness he committed, the commitment will he illegal; and all who were in any way concerned by being present and assisting in effecting or urging an imprisonment by virtue of said commitment, will be trespassers.
    RICHARD WILLIAMS sued Samuel B. Marsh, Richard Hurst and David Lea, in the circuit court for the county of Amite, for trespass, and assault and battery, and false imprisonment. The defendants in the court below filed separate pleas, each of them a plea of not guilty, upon each of which issue was joined. The defendant Marsh also pleaded the following: “And the defendant, Samuel B. Marsh, by his attorney, by leave of the court for that purpose first had and obtained, for further plea in this behalf says, at the time of the said supposed trespass, assault and battery and false imprisonment complained of by the said plaintiff in his declaration, there was depending and undetermined, in the superior court of chancery for the western district a suit in chancery wherein one Isabella Williams and the said plaintiff were complainants, and Richard Hurst, David Lea and George Hamblin were defendants; in which suit in chancery the said defendant, Samuel B. Marsh, was the solicitor for the defendants in the said suit in chancery; and that a commission regularly issued from the said court of chancery, directed to a commissioner, for taking depositions, in the county of Amite, for the purpose of taking the depositions of the said plaintiff, Richard Williams, and others, to be read in evidence in the said suit in chancery; and that under the authority of the said commission the said Richard Williams was regularly subpoenaed to appear before the said commissioners to testify and give his deposition, to be read in evidence in the said suit in chancery; and that the said Richard Williams did accordingly appear in the town of Liberty in the county of Amite, where the said depositions were appointed to be taken, and failed to appear before the said commissioner to testify; and thereupon, on motion of this defendant as solicitor for the said defendants in the said suit in chancery, an attachment was issued by the said commissioner to bring the said Richard Williams before him; and under and by virtue of the said attachment, said Richard Williams Avas brought before the commissioner: and upon the said Richard Williams being brought before the said commissioner, he refused to testify and give his deposition; and thereupon, on motion of this defendant as solicitor for the said defendants in the said suit in chancery, the said Richard Williams was committed by the said commissioner to the jail of Amite county: Avhich is the same supposed trespass, assault and battery and false imprisonment complained of by the plaintiff, in his declaration: and this he is ready to verify,” &c. To this plea the plaintiff demurred, and for cause of demurrer assigned — ■
    1. The said commissioner, if any, had no power or authority to issue an attachment and imprison a witness.
    2. The said Richard Williams Avas one of the complainants in the said suit in chancery, and so Avas not a witness who could be examined or imprisoned for refusing to give evidence against himself.
    3. The said defendant, as attorney, and all Avho were concerned, were equally liable to trespass, if the commissioner had no authority to imprison the plaintiff.
    4. It does not appear that the said plaintiff had ever been personally served with subpoena to appear before the said commissioner.
    5. The said plea is double in this, to wit': it sets up justification for tAvo reasons: first, that the commissioner had power to imprison the plaintiff; secondly, that he, being attorney, Avas not liable, whether the commissioner had authority or not; and also, that the commissioner was regular.
    6. The plaintiff ought to have set out the commission, that the court might judge whether the same was or not, regular.
    7. The defendant should have set out, that the answer of the defendants in the said suit in chancery was filed before the commission issued to the commissioner.
    8. The plea does not state that the commission issued by order of the court of chancery.
    The court below, upon argument of the demurrer, gave judgment that the same be sustained, and ordered the defendant, Marsh, to plead over. A trial was had before a jury, upon the issues, upon the pleas of not guilty, and verdict for the plaintiff against all the defendants of guilty, and damages assessed to two hundred and fifty dollars. Upon which judgment was rendered by the court.
    Upon the trial, under the pleas of not guilty, proof was made, on the part of the defendant, of the facts disclosed in the special plea of the defendant, Marsh, as before set forth.
    The counsel for the defendants asked the court to instruct the jury—
    1. That if a commission to take the deposition of the said Richard Williams did regularly issue, and the said commissioner was acting under the commission, and the said Williams refused to give his deposition, that it was the duty of the said commissioner to commit the said Richard Williams.
    
      2. That if the committal to jail of the said Richard Williams, by the said commissioner, was the only assault and battery, and false imprisonment complained of, it was a judicial decision of the commissioner, and the defendants were not liable or accountable for such committal.
    The instructions were refused by the court, and the defendants excepted. The defendants then moved for a new trial, which was overruled. The defendants took an appeal, and now insist that the court erred'—
    1. In sustaining the plaintiff’s demurer, and overruling the second plea of the defendant, Marsh.
    
      2. In its charge to the jury.
    3. In rejecting the matters offered in evidence by the defendants.
    4. In refusing a new trial, and in rendering a judgment for plaintiff.
    Webber, Buckner and Prentiss, for appellants.
    Walker, contra.
    
   Mr. Chief Justice Sharkey

delivered the opinion of the court. The trespass complained of in this case appears to have taken place, by the imprisonment of the appellee, by the commissioner appointed to take deposition in chancery. The appellee was summoned to appear before him, and refused; was then attached, and on refusing to testify was committed to jail. Twcj of the defendants were also defendants in the suit pending in chancery, and the other defendant was the solicitor. They were all present before the commissioner, and urged the committal. The appellee was one of the complainants in the suit in chancery.

Several errors are assigned by the appellants, all of which, I think, may be comprised in one question — had the commissioner power to attach and commit? This was the only point involved in sustaining the demurrer to the plea; the ground also on which the court refused to give the charge requested by the defendants, and the ground on which the evidence' offered by defendants was refused. If the commissioner had such power, and exercised it in pursuance of law, then the court erred in these three points; but if he had no such power, there was no error in the first three assignments.

By the 31st section of the act to establish and organise the court of chancery, the chancellor is authorised to appoint two commissioners in each county in the state to take depositions of witnesses in causes depending in the chancery court, and the clerk is to issue proper commissions to the persons so áppoinled. By the 32d section of the same act, the. duties and powers of such commissioners are prescribed and declared. They are in the first place empowered to administer an oath to the witness, and if the witness swear falsely, under such circumstances as would have constituted perjury, if done before a court of record, it is made perjury by the statute. They are in the next' place authorised to issue subpoenas for witnesses, rvhich are to be executed and returned, like subpoenas from the circuit courts. In the third place, if a subpoena be issued by the commissioner under the authority of the act, and served upon the witness named therein, and he or they, fail to attend, according to the requisitions of the subpoena, such commissioner shall report the default; and such proceedings shall be had thereon before the court, as if the witness had failed to attend a circuit court, and the witness is made liable to the action of the party grieved.

The commissioners appointed by the chancellor derive their power solely from the statute under which they are appointed. They are officers of the court for a particular purpose, and their powers and duties being prescribed by the statute under which they are appointed, they cannot transcend those powers. If the statute had merely authorised the appointment of commissioners, without defining their powers, a greater latitude of power perhaps might be claimed for them. But, admitting their powers had not been defined by the act under which they are created, could it be contended that they possessed greater powers than like officers would under the English chancery system? That system is adopted in this country in regard to the jurisdiction and powers of the court when there is no statutory provision, and even if no limitation of power have been prescribed for commissioners. I do not think any greater power under any circumstances could be claimed for them* than is possessed by commissioners appointed by the court of chancery in England.

There they possessed neither power to compel the attendance of the witness nor to compel him to testify after he had attended; but in case a witness refused to attend, or, having attended, refused to testify, the fact was certified to the court by the commissioners, which certificate must also be accompanied by an affidavit of the service of the subpoena. The court could then make an order on the witness to attend and testify, or, on default, that he should be committed. 1 Harrison’s Chancery, 446 to 450; 2 Maddock’s Chancery, 407.

A similar rule prevails in New York, and the court here has adopted the New York practice. Our statute has given no power to the commissioner, to attach or imprison, but has pointed out the course to be pursued by the commissioner, in case a witness refuses to attend, and any other course would be illegal. It is true the statute makes no express provision in case the witness, after attending, refuses to testify, but the commissioner could do nothing more than certify the fact to the court, as he would a failure to attend, as both acts in effect would be the same — a denial of the disclosure sought by the court.

It is contended by the counsel for the appellants, that the commissioners possess the power to commit by virtue of the 109th section of the circuit court law. That section provides that, “ if any person, summoned and attending when his evidence may be required, shall refuse to give evidence, &c., he shall be committed by the court commissioner or referees, &c.” This section is found in the circuit court law in that part of it providing for the attendance of witnesses, and obviously, from its language, relates particularly to that court. The 119th section of the same act provides a mode for getting witnesses before commissioners in cases depending in courts of law, and if the witness fail to attend, he is subject to the penalties prescribed for not attending in court. This latter section evidently refers to, and in truth is directly connected with the provisions of the 109th section, and both are applicable to the court of law.

It is tacitly admitted, that these sections in themselves do not properly apply, from a construction of them alone, to the court of chancery, but it is urged that the provisions in them are extended to the chancery court by the 109th section of the same act, which declares that “ all things herein contained, not restricted by their nature, or by express provision to particular courts, shall be the rules of decision and proceeding in all courts whatsoever in this state.” Now the sections alluded to are not only restricted by their nature from operating in chancery proceedings, but a specific provision is made in relation to the taking of testimony to be used in that court, which is incompatible with the provisions of the section mentioned. Commissionsers in chancery are neither mentioned nor included, because a foregoing act prescribes the mode of their appointment and powers. As well might it be urged that all witnesses should be compelled to attend the court of chancery and be sworn in court. This is required by the circuit court law, but it is not applicable in the court of chancery, because, according to the rules of that court it proceeds by a different course.

The motion for a new trial depends also on the same question in a great measure; the reasons assigned being such as to present little else than an application, because the commissioner had power to imprison, and therefore the court erred in the charge. The evidence shows that the appellee was imprisoned by the order of the commissioner, for the reasons stated, and if he had no such power, the verdict is sustained by the evidence.

There can be no question but all who were in any way concerned by being present and assisting'in effecting or urging the imprisonment, are equally guilty of the trespass, since the commissioner had no such power, and the act could not be official. 1 Chitty, 67-9; Johnson, 294; 11 Johnson, 285.

I have not thought it necessary to decide whether the applicants had a right to summon Williams as a witness, it being entirely clear to my mind that the commissioner had no right to commit even a common witness.

The judgment of the court below must be affirmed.

Note. — Mr. Justice Smith having presided on the trial below gave no opinion.  