Knoxville weekly chronicle. [volume] (Knoxville, Tenn.) 1870-1875, 1873-12-24
DOES THE SUPREME COURT CONTRADICT IT.
SELF

preme Court, while sitting at Jackson. The
| AruldHche, of Thursday, has a commune
cation, making certain statements, which,
if true, shows q state of affairs that will APP
peal strongly for reform in our judiciary
system. We make extracts from the COM
munication alluded to, which appears over
the signature of Reform :"
In former communication we promis>
ed to show that in some cases Tin one at
least on the same day Judge from each
section delivered an opinion, the two decis-
ions directly contradicting each other on
precisely the same question" '
The incident was this There was case
of Christion VS.. Booth, from the Second
Chancery Court of Memphis, Scott Chan
cellor, who bad decided in favor ct the
vendors lien in sale of leasehold proper
| ty At the same time there was an appeal
of another case from Morgan Chancellor
against such lien. Mr.. Jarnagin was in
| the latter case, Messrs. Hammond & RAN
dolph in the other. Our recollection is
| that Judge Turney delivered an oral ias he
| usually and wisely does opinion, affirm-
| ing Scott that the lien does exist. And on
| the same day las we remember) as others
| think on the next decision day, the Chief
Justice in q written opinion affirmed Nor
gan that the lien does not exist. However
This question of law might have been dis
cussed in full council, not merely was each
opinion promulgated as that of four men,
| bers, but each was promulgated as the
opinion of the whole court. Nenttnc con-
| ira 1icentc. When the decisions were
rendered the whole court was satisfied
and if any one had questioned their unan-
unity or the accuracy of the system by
which two opposite decisions were reached
on precisely the samen naked questions
of law, at the same term, with entire una
nimity, some lawyer entering the lists
of controversy, would have condemned
Jarnigan or Hammond as disappointed
counsel if they had complained.
The sequel is this: The court having
failed to see the ridiculous collision, the
Bar, or perhaps Mr. Hammond, called it
to their attention, upon which both de
cisions were recalled; and at the subse.
quent term, Judge Burton-a special
Judge-pronOunced an opinion sustaining
the lien. On the reading of this opinion, |
Judge Mcfarland, seeming tie have some
recollection in the matter, said I'VE have
decided that before He might have said
precisely the same thing if Judge Burton
had pronounced the opposite opinion, and
it is not surprising that Judge Mcfarland
remembered it, seeing that this incident
was a singular one. The singularity was
this: that Court of Appeals, after delibe-
ration in full council, on dry question of
law, should have promulgated, on the same
day, or in a week, or in the same session, |
two directly opposite opinions, destroying
one client while making another. When |
the observation of Judge Mcfarland was
made, there was much laughter and mirth |
there, in the court.
But, suppose the attention of the mem
bers of the Court had not been called to
the collision of the two Judges at the time
it occurred. Would the losing party have
laughed and had mirth at his Preside il he
were poor and depended on the lien on the
sale of little leasehold? Would it have
been any satisfaction to him that at a sub
seqent session, on another case, one of the
conflicting decisions-the one which had
deprived him-should be set right and the
law be made for the time to conform p
We doubt it.
Suppose again, these two decisions had
gone into the reports, how could counsel
lors at law have advised their clients what
the law was? Ii was bad enough in Nero
to publish his laws and place them so high
that the multitude could not read them,
and punished them for not understanding
them, and he is placarded through all his
tory as the tyrant for this act. But sup
pose he had published two opposing sets of
laws and punished his subjects for not
obeying both sets. History would he at
fault to find "a cognomen for his act. Hap
PLY, in our case it was only civil act of
our Judges, and not criminal law involv-
ing punishment. 1t only reached to de
privation of property. But this means re-
ducton to poverty, aud poverty in this age
is more unfortunate, it not worse, than
crime, and is certainly worse punished.
Now this incident is well remembered by
the profession in Memphis, and is often
talked over as one of the many evidences
of the System by which law is made I'M
certain, unstable and untelligible.
\ question: Could such an incident have
possibly happened when Green, Reese and
rurley were on the bench, or could it pos
sibly have happened under the auspices of
that great Judge, Mckinney"
This incident, if it had been fulfilled, is
not more injurious than Judge Freemans
decision In the Cousins case, evidently
passed into judgment without any cxami-
nation 10y the members OF the court of the
record and briefs, whose examination were
absolutely essential to a right understand
ing of the case, and which no member of
the court on his own responsibility will
say he did examine.
What member other than Judge Free
man will now state that he finds an estate
tail in the Booker case converted into a fee
simple? Yet they have 20 held.
What one viii construe section 200 of
the code as that decision of Judge Freeman
does.
What Judge Will pronounce that there
may be an absolute estate ascertained on
the intent Of the testator, and yet no pow
er Of disposition in the takcr? If there be
such an one, let him say 50 openly, over
his name. And what Judge will sanction
Il H. H. = a..