Nashville union and American. [volume] (Nashville, Tenn.) 1853-1862, 1858-02-27


win not give ny voice or my vote to continue the
present equalization Of the court. Upon a careful
examination Of The prOvisiGu Of the bill II viii be
seenhat Il moves all the 0bjectiOnsto which IhaVe
ailuded. Under THIS proposed organization Of the
courts, h ee chau0sllOrs can do ell the business
required Of the Elk Chaneellors under the present
organization ofthe courts and with more convenience
u the ChanCeusrs without Inconvenience 70 the
people and less expense tdAhe State; aud vita the
heavy debt owing BY The State and falling due in
few years and heavy taxes levied the pockets Of
tue people annually for the support Of the State
government and the payment Of the State debt We
ought to lop of every unnecessary expenditure and
iuauguTste 2 system Of FetTenOhment whenever It
can be done without prejudice to the public service
The first section of the bill abolshes the present
ChanCery Courts, and declares the Offices Of the pre-
sent Chhncslors vacant after the 10Th Of May next
This IS necessary to sttain the objects Of the bill
there being now six chanoery divisions and the bill
proposes 10 reduce them TO three Divisions.
There is not neither can there be, any doubt Of
the power Of the General Assembly, to abolish the
present Chsncery Courts, and establish another
and different system or 70 abolish all Chancery
Courts, and transfer the equity Jurisdiction to the
Circuit Courts
There is but one constitutional Court in the State
which the Legislature oaunot abolish at pleasure,
and that is the Supreme Court. The truth Of this
proposition is manifest from the language Of the
constitution itself
o,
power of this State sbdn be vested IN one Supreme
Court; in such inferior Courts the Legislature shall
from tneto time ordGiH and establish and the judges
thereof and IN justices Of the peace.
From this language Of the constitution, 1t will be
seen that the Supreme Court, is the only court
ated by the constitution, and the only which the
Legislature cannot abolish at pleasure
All courts, Inferior to the Supreme, are mere
creatures Of legislation, and legislative enactment,
and only exist by acts OF the Legislature. They may
be abolished by legislative enactment, aud may by
repeal Of the creating the court, be abolished
and others established in their stead and when the
court is abolished the Office of the judge ceases to
exist and is vacated by the repeal Of the act creating
the court, as a necessary consequence.
We are not without precedent in the Legislature
Of this State for the abolition of one class of courts
and the creation Of another, by mere act Of the
Legislature. In 1909 the Legislature of Tennessee
abolished the old District Courts and established the
Circuit Courts, aud 1 not advised that the power
Of the Legislature has been doubted or called
in question in regard to the passage Of the bill by
which this was done.
The act ST the Legislature Of Tennessee, abolish
ing the old District Courts is not the only authority
or precedent, we have on this question of the power
of Legislature to abolish court of its own erea-
ton; we have other and higher authority
The constitution Of the United States, providing
for judicial system, provides that the judicial pour
er of the United States shall be Uest'i one Supreme
Court and sUck inferior courts as the Congress may
from 10 time, OTdaH and e5ta6Lsh. This language
of the constitution Of the United States is identical
with the wording Of the constitution Of the State of
Tennessee, with the single exception of the word
smay" in the former and ''shall in the latter. Du
ring the last session Of the Congress Of the United
States under the administration of the elder Adams,
the Congress passed act, creating courts Of the
United States and judges Of these courts were 8p-
pointed, believe, the very last night of the
sion and called Adams midnight judges
Mr.. Jefferson went into Office on the 4th day Of
March, 1901, and at the next session of Congress
this act creating the courts and appointing the
judges, was, after able and animated debate in
both Houses, repealed, and the courts abolished,
and the offices of the judges vacated; and presume
no one doubts, at this time, the power of Congress
70 repeal act creating courts, to abolish them
and vaoate the Offices Of judges, appointed by Pres
dent Adams
The second section of the bill declares that each
judicial circuit shall be chancery district; one
court shall be held in each circuit
The third section provides for laying Of the State
into chancery divisions, in each Of which chancel-
lOr shall be elected.
The fourth, fifth and sixth sections declares what
Law circuit shall compose the several ohsncery dvi
sions.
The seventh section Of the BILL to obviate every
possible objection which can be made to the bill
arising from the fact that parties Egsting in the
courts would be subjected to the inconvenience Of
going out of their respective counties to attend to
their business, and for the purpose Of sffording
every convenience and facility to the party in at
tending his suit in the dstri,t court which court
located in the county could do, declares that it
shall be the duty Of each chancellor to appoint
master in chancey for each county in the district
and that the master thus appointed should reside
and keep his Office at the county seat
The eighth section of the bill vests in master in
chRnoery all the powers Of clerk and master Of
file bills in his office; second, TO issue all processes
third, TO administer oaths; and fourth make all
rules and orders in a cause which clerk and mas
ter can make So it will be seen from the prOvi-
sions Of this section that a pending in q mas
ters Office, may be fully prepared for final hearing
in the masters Office unless it should become neces-
sary in the progress Of the cause to obtain an
order Of the chancellor which he can only make in
court.
The ninth section provides that the master shall
keep in his office rule docket, an order book and
memorandum book which are required to be kept in
the office of the clerk and master.
The tenth section provides that in all cases the
bill may be fled in the Office Of Master in chan
Gerry in the county in which the parties reside,
whether court be held in the county or not and
that upon the filing of the bill the Master shall is
sue all such process and copies of the bill Clerk
and Master is now required to ISSUE
The eleventh section provides that subpoena in |
.
the Masters Office. 1t also declares rule days TO be
the first Monday in every month
The twelfth section Of the bill provides that when
a subpoena in chanceTy has been returned to q rule
day in Masters office executed, the defendant shall
plead answer or demur on or befOreRthe next rule
day. unless he show cause according to the rules of
practice in the court before the Master and obtain
an enlargement Of the time to plead answer, and
this time shall not be longer than the rule day.
The thirteenth section Of the bill declares that it
shall be the duty Of the Master in chancery when |
an is filed, to give notice in writing to the
of the complainant Of the fling Of the
swer and if exceptions to the answer befed with
in twenty days after the notice shall have been
ceived, the cause shall be at issue.
The fourteenth section directs the Masters in |
when exceptions to answer have been |
filed within twenty days after the filing of the |
exceptions, to examine into and decide the eIcep-
tons thus filed, and either party may appeal from
the decision of the Master on the exceptions filed,
to the chancellor in court, or the appeal may be
heard before the chancellor in vacation upon the /
appellants giving the aPpelledfve days notice Of the
time and place Of hearing the appeal before the
chancellor.
Under the provisions Of the fifteenth section of |
The bill if the complainant fail take all the rules
and orders which he is by the rules authorized to
take, the defendant may, petition to the chancel-
Or specifying therein the proceedings in the cause,
obtain the order Of the chancellor the complain
ant, 10 take ali sucn proceedings rs are necessary 70
bring the cause to a speedy hearing.
Aud if it appear to the chancellor that the COM
psnant has neglected to take the rules and orders
in the cause which he is authorized to take, the
chancellor shall make order on the complainant
10 speed the cause by day specified IN the order,
Or his bill shall be dismissed. To obtain this order
The defendant must give five days notice.
Under the provisions of the sixteenth section, the
defendant may obtain 8 similar order on the COM
plainant in court, without notice.
The seventeenth section allows the parties three
months to take proof in the cause after which either
party may set the for hearing, so that in FIVE
months after the process has been retained exc
,uted, the cause may be tried.
The eighteenth section Of the bill declares that
,suses may be prepared for a final hearing in the
masters Office in each county in the ohancery dis
riot This provision Of the bill supercedes the neces
iy Of the partys having to leave the county Of his
residence to attend to his case.
This section also makes it the duty Of the master
n whose Office the bill is filed, when the cause is
prepared for hearing, to file the papers in he cause
With copies of the rules and orders taken in the
suse, in his Office in the court, at the next term