Nashville union and American. [volume] (Nashville, Tenn.) 1853-1862, 1860-01-26

proper time to hold such Court IN Nav. was the
third. instead Of the fourth Monday
Ihe Circuit Court Judge not being able to keeanace
with these sudden changes in the legislation b the
State, and not being aware q tae existence hi Tie
act og the list OF March, 1858 bnt snpposine IS he
web might, and as no doubt did Tie other officers
and sutOrs of the Court, that lhe proper tima o.
held It, by law, was the fourth Monday IN Hay-
proceeded TO open and hold sand Court at thatt time
as required by the ect Of tie 18th Of january 1855
and during shat term rslieed the Judgment al0rs-
said
The act Of the 25th os January, 1853, was printed
in the general aud pubic laws Of that session while
the act Of the lst Of March, only appeared among
the private acts.
III is true that IN the act Of the 20.h 81 March.
printed among the public laws, the sessions Of the
Circuit Courts Of said county wer permanently fixed
upon the third Mondays Of January, May and sep
tember; but in the same act Is was expressly pro-
vided, that no alteration made by ihal act ~ tne
time then prescrsed by law for holding SAID Court
should take etees until after the first term of tie
Court after the sxpiraion ot forty days from tae
end Of that sessiea of die General Assembly.
It viii thus bescen that this course Of legislation
was well calcuefed % Insiead, and did mslead me
officers and suit5rs Of the Court as t0 the true time
Of holding it, and that scarcely any amouiit Of Ygi
lance could guard against it.
The plaintiffs in error after the adjournment Of the
term having discovered that the Court had been
holden at the wrong time, have obtained wit OF
error and now allege that said Judgment Is eIToie-
oas and void.
ge 10 not think SO. The Circuit Judge in this
ease acted under color OF legal authority; and no
objection taken "a toe Jurisdiction of Inc Court
Or TIE power Of the Judge 70 act at the time tine
Judgment was rendered.
His not pretended that the judgment is not Jast
or that they were, in any Eay surprised upon the
trial but on the contrary, the record shows that
the parties appeared, by their counsel and no excep
ton whatever was taken either TO the authority
u 41sa-7 flrff Com =
the case.
The public acts of Offices ds f1eo are olton yaiid
1 though the authority undef which they act void
Il Public convenience as well as pubic Justice. RI
qnires tEat this should be Supposed
Indeed, no principle Is better settled lie the English
and American law, than taat the acts 81 officers Il
fdcto are valid, when they concern the public or
the rights Of third persons. who have an interest
in the act done, and tbs ruie has been adopted "a
/ prevent a failure Of justice. But different rule
prevails when the acts for the benefit of the officer
because he shal not take advantage of his want
Of title, which he must be cognizant Of but when i
is f0r the benefit OF strangers or the public who airs
presumed TO be igAoraht0f sae defective tte n is
good. Taylor vs.. Hine, 2 South Car Rep. 696 Pee
pie vs. Collins, John, Rep- SO deJntry IS. Tur
The same rule is laid down in this Court in Pierce
VS. Hawkins, Swan, 81.
The consequence Of holding a contrary doctrine
would be alarming and it is easy 10 see the mos
7
In England, upon writ Of error the question
whether the Judges in the Court below are prop
eriy Judges, not can never be decided. it be
ing sufficient Of they were Judges De fGeto Tenn
Rep 81; 6 Bar A. G. Title Offices ard officers
We have been referred bF the plaintiffs ia error q
Grigg vs.. Cook, Peck's Rep. 81 and Brown vs.
Nicely, Yer. 395. But it is manifest in these cases
Is also in Smith vs.. Norwert, Yer, 81 the doe
trIne, as to the force and and etiec. Of judgments
and DEGREES pronounced by Judges de faoto, was no
considered. -. - .
There can be no doubt. whatever, upon rea
son and authority, that Judgment By a JUdg,
de fact0, setting and holding a Court at the pro
As judgnent pr0uouneei BY Judge rghfully
If So upon what reason should we hold tina
the judgments and DEGREES of a Judge regularly il
Office, are erroneous because he held his Court IN
der color Of law that turned out to be repealed
or invalid?
In the case referred to from South Carolius
e 5. Car. Rep, 500 the Jddge who pronounced th'
decree sought to be reversed and had been appoint
by the Governor, pursuant to the act Of 1870 O
that State, and after the decree the act was b
the Supreme Court Of that State, declared uncon
stitutonal and void and yet the decree wa.
held valid upon the principle laid down in Swa-
81, and the other authorities to which have re
ferred.
The Circuit Judge has not been put 70 answer for
any Illegal exercise Of power. and the plaintiffs II
error cannot, in this collateral way, call question
his authority.
We. therefore, think the Judgment of the Cir
cult Court must be held valid and affirm it.
WRIGHT.
Test: NJ. D. WEIGH, Clerk.