Smith v. Wilson

15 Tex. 132 | Tex. | 1855

Wheeler, J.

The principal question presented by the record is, whether the Clerk of the District Court has authority to take the affidavit of a party to a petition for a certiorari to remove a cause from a Justice’s Court into the District Court of which he is Clerk.

Looking to the phraseology of the Statute, (Hart. Dig. Art. 661,) we have felt some hesitancy upon the question, whether its terms embrace a case like the present. But if it was not intended to embrace such a case ; or, in a word, to embrace all cases generally, where an oath is required to be administered in proceedings appertaining to the District Court, it is not easy to perceive what cases it was intended to embrace, or indeed what effect can be given to the Statute. On general principles, the Clerk of the District Court, as the ministerial officer of the Court, under the direction of the Court in Term . time, may administer oaths, and, of course, no Statute was necessary to confer that authority! So, where it is made by Statute the duty of the Clerk to administer an oath in any particular instance, the Statute imposing the duty confers the authority of course; and no general law was necessary to embrace, and confer the authority, in such a case. We conclude, therefore, that something more must have been intended ; and that it was the intention of the Statute to confer on the Clerk authority to administer all requisite oaths in proceedings appertaining to the Court of which he is Clerk; consequently that the Court did not err in refusing to dismiss the certiorari for the cause assigned in the motion.

Nor did the Court err in the instruction to the jury upon the effect of the Statute of Limitations. Excluding from the computation the day on which the note became due, still the suit was not brought within the time limited by the Statute. The judgment is therefore affirmed.

Judgment affirmed.