Heiskell's Reports, Volumes 1 and 2.

The first and second volumes of Heiskell's Reports of the decisions of the Supreme Court of Tennessee have been sufficiently long in the hands of the profession to have had judgement passed upon them. They are the first fruits of a new corps of Judges and a new Reporter, and may well claim indulgence, if indeed they need any, for defects of form at any rate, and even of substance. It is not often that a court has been called upon, under more trying circumstances, to discharge its high functions. The dockets were crowded with cases, the arrearages of years. The cases themselves, commenced, as they were, either during the late civil war, or in the chaotic state of affairs immediately following, presented questions of novelty and difficulty. The new court began the discharge of its duties under the serious embarrassment of being, to some extent, new to each other, and therefore not familiar with the workings of each other's minds. They were still less acquainted with the individual members of the bar, and their several modes of reasoning. It has been a matter of surprise to us, in carefully examining these volumes, to find how well, under all the circumstances, the duty of the court has been discharged. As a general rule, there is no evidence in the opinions of the fact that the learned judges are new in their seats, and make their first appearance in a novel and untried role.

There is a judicial manner of deciding cases which is only acquired in perfection by experience, and which enables the practised judge to condense the statement of the case, and the rulings of the law into the narrowest compass without material omissions, and without unnecessary verbiage. It is not to be expected that a new comer upon the bench will be able to escape criticism in these respects at once. In attempting brevity, he is in danger of becoming obscure. It is better for him to err, as he is apt to do, on the other extreme. And it must be admitted that the learned judges in question, although they have assumed the judicial manner with marked success in many respects, have, not unfrequently, taken uncommon pains to be on the safe side in this regard.

Upon the whole, however, the opinions contained in these two volumes are very creditable. They show that the judges have dili

gently and conscientiously discharged their laborious and responsible duties. The statements of fact are generally clear and sufficiently full, the reasoning logical or based upon precedent, and the conclusions satisfactory. If a judge, in delivering the opinion of the court, occasionally indulges in a little rhetorical display, not exactly germane to the dry issues of law under consideration, or sometimes inclines to the "sic volo sic jubeo" order of decision; if he now and then wanders into the regions of politics and political economy, or demonstrates with unanswerable logic, that two and two make four; these are exceptional occurrences. The large majority of the opinions are couched in unexceptionable language, and are marked by the calm and dignified tone which is appropriate to a tribunal whose duty it is to pass upon the conflicting rights of heated disputants, without favor or affection. And whenever questions of more than ordinary interest occur, the judges are generally equal to the occasion, and rise to the level of the great argument. It is no disparagement to them to suggest that they sometimes err, for it is human to err; and in the immense number of rulings made, it would be little short of miracle if they did not err.

We propose to review the decisions in these two volumes, and to make such suggestions as have occurred to us in the careful reading to which we have subjected the most of them. What we have to say, we offer simply as suggestions. It would be presumption in us not to admit that the presumption of law is with the court. Besides, the rulings upon which we propose to comment, were made after hearing the arguments of counsel prepared for the occasion, and upon due deliberation, under all the responsibilities of official position. Our suggestions have occurred to us in solitary reading, and must be taken with due allowance accordingly. They may have the merit of stimulating thought, and inducing the bench and bar to weigh the rulings with more care than they might otherwise be induced to do. The merit of the decisions themselves, if they are really meritorious, will thereby be rendered more conspicuous.

Let us first say, that the Reporter, too, has done his duty faithfully. In the searching analysis which we have made of the decisions, we have been surprised to find in how few cases it has occurred to us to change or add to the substance of the head notes. The language

might often be condensed or otherwise altered, and, perhaps, for the better, but the matter would remain intact. And with the immense mass of business which is thrown, at this time, upon the Attorney

General and Reporter, the only wonder is that he has done his duty so faithfully, and accomplished his task so well. If we make any suggestions to him which deserve consideration, they will probably be such as would have occurred to him on reflection, or may have already occurred to him. One of these suggestions we think he has had in mind, although he has not always acted upon it, and that is to give the leading idea of the decision as the first head note, allowing the others to follow it in natural sequence. Another suggestion

which he has sometimes acted upon in his second volume, and which would be a great improvement if kept up, is not to give all the cases cited from our own reports in a separate and distinct head, but to let them follow the head note which they are cited by the court to sustain. This was the course pursued by Mr. Meigs, the best of our Reporters, and deserves to be followed by his successors. It is a great saving of labor to know precisely the point upon which a case is cited, at a glance, without being compelled to read the opinion for this purpose. We are already under obligations to the Reporter for the table of our own cases cited by the court, and for indexing the citations from the Code, and other features of his reports, which show that he is fully equal to his duty.

The first case in the first volume decides that an account authenticated under the Code 3780, so as to be prima facie evidence of its correctness, and to require a denial from the defendant under oath, can not be introduced in evidence unless expressly declared on, and profert made thereof. This decision is put upon the wording of the Code, which speaks of the account "on which an action is brought," and is, perhaps, correct in principle, although the practice had previously been different, and although the general rule, both at law (Townsend vs. Sharp, 2 Tenn., 192) and in equity, (11 Paige, 405,) undoubtedly is that a change by statute in the character of evidence does not ordinarily change the form of pleading. We think the decision has met the approval of the profession.

Mr. Heiskell has thrown together, from pages 16 to 40, a number of cases under the attachment laws, the effect of which, when first decided, was to create a good deal of alarm among those who had attachment suits pending, and which did occasion a change in the practice previously pursued. Many of these cases were supposed to be attachment suits brought against citizens of East Tennessee who were in the Confederate armies, or who went South during the war, in which attempts were made to take advantage of the forms of the

law for unjust purposes. And it was surmised, by some persons, that the law might have been warped to meet the exigency of this class of cases, where the justice of the cause was with the unfortunate debtor. We have given these cases a thorough examination for these reasons, and we believe we can safely say that the suspicions alluded to are without any foundation. The decisions are in every instance strictly in accord with precedent, and, we believe, correct in principle, unless it may be on one point, to which we will call attention presently, where the decisions of our State courts are in conflict with the decisions of the Supreme Court of the United States. But even in this instance, the error of the court, if there be error, is in following a precedent made long before the war.

The defect of these cases is not in the conclusion arrived at in each, but in the want of system in working out the conclusion. No general plan of argument seems to have been adopted by the court, and the particular judge to whom the record was committed, seems to have been left to argue the case to suit himself. The consequence has been, that while the decision in the particular case is right, the reasoning is not always correct, nor the argument consistent with that adopted in other cases of the series. Thus, the first of the series of cases, while decided correctly, goes beyond any of the others in its requirements of a good attachment, beyond what was necessary, and beyond, we suggest, the law. And it was this case which caused a change of practice in attachment cases, and created the most alarm. Thus, also, the decisions in Gibson vs. Carroll, and Ingle vs. McCurry, (pp. 23, 26,) upon identically the same point, are put upon different grounds. And lastly, although three of the cases are cases where the attachment proceedings were collaterally attacked, and the others cases where the proceedings were directly brought in question, by appeal or writ of error, no distinction seems to be made between these very different classes in the line of argument pursued. Let us go over the points enumerated.

The first case of the series is Riley vs. Nichols, p. 16. The case turns, as stated in the opinion, entirely upon the question of the validity and regularity of the proceedings under a judicial attachment. The learned judge gives in full sections 3521, 3522 and 3524 of the Code, and then properly adds: "From these provisions, it is clear that the attachment levied, and a publication as required by section 3522, are necessary before complainant is authorized to 'proceed as if suit was commenced by regular summons.'" He then gives the

order of publication actually made, which recites the cause alleged for suing out the attachment to be, that the defendants "are either nonresidents, or so absconded that personal service can not be made." Now, it is obvious that this cause was the cause given for suing out the ancillary attachment, which was abandoned, and not the judicial attachment. The cause for the latter attachment was, that the summons had been returned by the sheriff "not to be found." The record, moreover, failed to show that publication, as ordered, had been actually made. It would have been sufficient in this case, which was a direct proceeding by writ of error, to have said that the order itself did not contain "the cause alleged for suing out" the judicial attachment, and that the record did not show any publication, and, therefore, the court had acquired no jurisdiction of the cause so as "to proceed as if suit was commenced by regular summons." But the learned judge adds: "It (the publication) fails to show that the attachment had been levied on the property of the defendants, or that any attachment had ever been issued against the property of defendants. * Without these requisites the publication does not give the party that notice which is required by law." We submit, with great deference, that the law does not require that the publication should show a levy of the attachment upon the property of the defendant. It is true the publication is required to be made after the levy, and the record ought to show the fact, but the Code, section 3522, cited in the opinion, does not require that the fact should be inserted in the notice; and the requirement is too important, and too serious, in view of rights acquired under attachments where the publication followed the letter of the law, to be interpolated by judicial legislation -the worst kind of legislation according to the learned Chancellor of our Metropolitan district. We are not inclined to deny that the interpolation is a judicious amendment of the law, but it belongs to the Legislature, not the courts, to make it.

In Ingle vs. McCurry, p. 26, one question presented was the effect of an ancillary attachment without service of the summons in aid of which it was sued out. The judge who delivers the opinion, correctly says: "The only office of the ancillary attachment is to hold the property attached for the satisfaction of the judgment which may be rendered. It does not bring the party into court." And, for this reason, he holds that the ancillary attachment does not give jurisdiction, there having been no personal service on the defendant of the summons in aid of which the attachment was sued out, nor any pub