Nashville union and American. [volume] (Nashville, Tenn.) 1868-1875, 1871-05-07
Federal Court

LIS IOuOWluS Du5lnoe8 W8s transacted
yesterday before Judge Emmens:
United States vs. Berner. This case and
some twelve or thirteen others of similar
character, were all disposed Of BIZ Judge
Emmons overriding the demurrers in
each. Some Of them raised the question
whether bond given by distiller to the
Government, with sureties, made the par
ties liable for the salary of store keeper,
when, at the time of the execution Of the
bond, such salary was not payable by the
distiller. The Judge held that they were
liable alike, whether the bond was execu-
ted before or after the statute which i'm
posed that liability.
In the case of Duling vs. Garrett, ad-
ministrator of Cook, which was o case In
equity, being 9 bill fled for an account,
the decision was that the proof sustained
the allegation Of partnership, and the &C.
count was ordered.
In another case, the caption of which
we do not recall, but which was one In
reference to military officers. the point de-
cided was that plea In answer to an &C.
ton of trespass which set up the order of
the military commandant Of the Federal
forces, where the trespass took place, was
q sufficient justification for the act COM
planned Of This was an action in regard
to trespassing on lands, and cutting TIM
Der by the order of military commander.
Motion was made to remand quite q
number of cases from the Federal to the
State Court, upon the ground that the or
der of local commander was not such an
order as was contemplated by the acts Of
Congress which authorize the removal of
causes to the State Court where ections
are brought against those who perform the
acts in compliance with orders Of the Pres
ident. It was decided that the act of 1866
extended the act of 1868 so as to make
either class removable, whether the order
was given directly by the President or by
q subordinate officer, SO ss the officer was
in command of the place at the time.
There were some fifteen or twenty Of these
cases, all involving about the same points.
1t was further held that petitions for re-
moval from the State to the Federal Court
should be filed In the State Court.
United States vs. Baker. A verdict
having been taken, subject to the opinion
of the court, raising the question whether
q market gardener who raised produce and
sold it to the city wss produce broker,
within the meaning Of the act Of Congress,
and was indictable for selling without
license, it was held that where the pro-
ducer rented stall, and became to all in
tents and purposes, a grocer, or seller
of vegetables undera license from the city,
as other ordinary dealers do, that be was
subject to Indictment for selling without
license; but it was held further, that the
special verdict in this case did not show
that the defendant was q vendor, within
the meaning Of this principle, and judg
ment was therefore given for the de-
fendant.
At the close Of the business for the day,
Judge Emmons said that he had noticed
with much regret that lawyers of emin-
ence, well versed in the laws of property,
entirely competent to try the most i'm
portant causes under the local codes Of the
States, with which they were familiar,
found themselves, in the Federal Court, so
unfamiliar with, and perplexed by the in.
tricacies of common law pleading as to
constitute a serious hindrance to their
practice in it. There had been
expressed by Judges of eminence
great doubt whether the Circuit
court had right to adopt q new system of
pleading materially variant from that pres
that the authority given by that statute
to alter the forms and mode Of proceeding
might not be held to include an author ty
to change the system of pleading. He
suggested that the bar would take into
consideration, and report to him the names
of a committee, on Monday next, who
would act on this subject. He said that
he would add to that committee two law
yers Of the Memphis bar and two of the
Knoxville bar, to confer with the local
committee here.
The Judge further remarked that Judge
Swayne, Of the United States Supreme
Court, would be here in few weeks,
when this subject could pc brought before
him. In the meantime, he Judge EN-
mons would meet Judge Swayne and
would have q consultation with him, 30
that he should be prepared to announce q
deliberate opinion upon his arrival here.
Judge Emmons expressed q strong
preference for the adoption, substan-
TALLY, of the State system Of plead
ing; not, he said, because he
had examined it and was prepared to
pronounce upon its merits, but because it
was more important that the bar should
be familiar with whatever the system was,
than that the system itself should be the
best that might possibly be selected. This
idea, he thought, derived additional i'm
portsnce from the fact that, at best, what
we should adopt would constitute but q
rule of court, would have no means of
publication save mere pamphlet issue,
and would seldom find Its way into the
hands of local practitioners until the exi-
gency should suddenly arise for employ
ing its principles; whereas, If the code Of
the State were substantially adopted all
would be familiar with it.
Judge Emmons stated several instances
calculated to illustrate the impolicy of the
present condition of things, and the ne
cessity for remedy. He suggested also,
that should these means fail, the Supreme
Court, which beyond all controversy had
the power we desired to exercise, might be
induced to adopt rule for all the Circuit
Courts of the country, substantially
authorizing, if not compelling, proceed
ings in the various Circuit Courts like
those in the State tribunals.
The discussion was somewhat extensive
ly participated in by Francis B. Fogg,
Esq, Chancellor East, Gov. Neill s.
Brown, Maj. John O. Thompson, Hon. b.
81. Harrison, and other leading members
of the bar, who substantially concured in
- L. l. .N.N- znNsk~