Mr. Figuers.-The discrimination is not between the men who can and those who can't, but because the women can and the men can't.

THE PRESIDENT.-The motion is that this recommendation be non-concurred in.

Upon the vote being taken the motion was carried, and this recommendation non-concurred in.

THE PRESIDENT.-The Secretary will read the next section. The Secretary read the next section as follows: "That the first Monday in every month be made a rule day in the Circuit Courts, so that suggestions and motions necessary may be entered."

Mr. Rulm.-Mr. President: I desire to call attention to the fact that I mentioned this a year ago in connection with the practice of the Circuit Courts. After mature deliberation, and after examining the question closely, the lawyers have come to the conclusion that each Circuit Judge has the right to make such rule, and any other rule for the practice in this Court which is not in conflict with the law. We have, for instance, adopted at Nashville the rule abolishing the appearance term in the Circuit Court. It was thought that could not be done, but after a thorough investigation it was manifested that each Circuit Judge has the right to establish any rules he sees fit, aad there is no necessity for legislation on that.

Mr. Gant. Did you say we had made such a rule?

Mr. Ruhm.-Yes, sir; making all cases triable at the first term, and therefore makes the first Monday a rule day, if they are found triable.

Mr. Bonner.-Since there exists in the minds of the members of the Bar a degree of misapprehension as to the right of the Circuit Judge to make a rule reviving a cause, the Committee was led to adopt this recommendation, in order that this misapprehension might be relieved, and to make it obligatory upon our Judges to allow this practice. I think myself that it would be better to be in a statutory form than to leave it to the Judges. I have known a cause to be continued at Nashville for four months because there was no reviving term. So I take the liberty of agreeing with Mr. Sanford that that rule should be adopted, and set at rest all doubts. The Committee thought

it would be better in the form of legislation, but thought it would be better that way than not at all.

Mr. Fentress.-I would like to inquire of the gentlemen of the Nashville Bar whether it is not a matter of common consent among the lawyers. It strikes me it is going very far to say any Circuit Judge can invest his Clerk with the power of the Master in Chancery. I understood Brother Ruhm to say that was practically the way they managed in Nashville. The question is whether or not there is any law in Tennessee (and if there is I have never seen it) empowering the Circuit Judge to invest his Clerk-the Circuit Clerk-with the power to do any thing of that sort. I think not.

Mr. Ruhm.-I did not say that, and did not want to make that impression. That report does not intend to confer any power upon the Clerk, but simply to make the first Monday a rule day before the Court. What I mentioned was that in Nashville the Circuit Judge has established a rule, not to confer any additional power upon the Clerk, but a rule for the guidance of the Bar and for the guidance of the Court; and by this agreement cases will now be tried at what was formerly the appearance term. It does not at all confer upon the Clerk any powers that he did not already have. It is not understood that there can be any rule adopted conferring upon the Clerk the powers of the Master in Chancery. The point I wish to make is that we recommend this in the form of general legislation, as it is not in the power of the Judges to make rules of this kind regulating their special courts.

Mr. Figuers.-I would like to inquire whether Mr. Ruhm says that the Circuit Judge has power to abolish the law granting parties the right to make up a term, and to enforce the trial at the first term?

Mr. Ruhm.-I said there is no such law. If you will allow me to answer more fully, will say that necessity of the existence of the appearance term is based upon a dictum of Judge Brown, that parties have the right, during the first term in which a cause is brought, to make up the pleadings. There is no statute to that effect that has been adopted as the law of Tennessee, but under another statute it says a Circuit Judge may make such rules as are not in conflict with the law, and

we have found in our practice that they can make such a rule.

Mr. Figuers. I understand that such rules are reasonable in some cases, but it is new to me that the Circuit Judge has the power to force the trial at the first term of the court, and I think it will be a new announcement to the Bar of Tennessee.

Mr. Gaut.-I had a conversation with a Judge of our city yesterday, and asked him if there was any rule in his court by which appealed cases could be tried at the term to which they were appealed, and he said there was no such rule, and he did not think he had any power to make such a rule. It seems to me such a rule would be analogus to the one under discussion. However, I consider it would be better that there should be a statutory rule, obligatory in its application, and also general in its application, rather than a number of local laws or regulations. Unless there be a difficulty of this kind, we must remember that a rule that would suit us city lawyers who live at the place where the court is held, might be a very inconvenient one in the country where the court is attended by lawyers who ride a circuit. I am not prepared to say how far the proposed rule will go. Whether it will authorize steps to be taken other than the mere making of various orders or not, it should authorize the taking of any steps that would involve discretion on the part of the Clerk, I think it would be better to leave the question as it is; to leave it to the discretion of the Judges. But, as I said before, I do not know how far the measure will go in its application. If it is to go to the extent I anticipate, it will do much harm.

Mr. Ruhm.-Will the Secretary please read the section again? (Section read by Secretary.)

Mr. Ruhm.-I beg the gentleman's pardon for again rising, but this question deserves that the Bar pay attention to it. The matter suggested by my friend Gaut is one regulated by statute. The statute prescribes in so many words that appealed cases from Magistrates should not be triable unless the papers are filed three days before the term of court. That being the case, the Circuit Judge has not the right to make a rule in conflict with it. But in regard to cases originally brought in the Circuit Court, there is no statute. Our practice is based

upon a law (or custom) that you will nowhere find in the books, but it has been adopted as the common law, so that in appealed cases from a Magistrate you could not make such a rule.

THE PRESIDENT.-The Secretary will please read the recommendation again. (Secretary reads recommendation.)

Mr. Wiltse.-Mr. President: While the gentlemen at Nashville can make such rules during the term of Court, yet, out among the country lawyers, the Courts do not hold more than two weeks. They have to wait sometimes two days, and sometimes two weeks after the Court adjourns, before they can make the suggestion of a death, and they have process issued that is returnable to the next term of the court, and cannot have it at that term. Still, I am perfectly content to empower the Judge to invest the Circuit Clerk with the same power as the Master in Chancery, as I think it would greatly expedite business.

THE PRESIDENT.-The question is now upon the concurrence of the Association in this recommendation.

Motion offered that recommendation be concurred in.

Motion carried in affirmative.

THE PRESIDENT.-The Secretary will read the next recommendation.

Secretary reads the next recommendation as follows: "That a party seeking a continuance to the first trial term for the absence of a witness, shall be required to state what he expects to prove by the witness just as he now has to do at the subsequent term."

Motion offered and adopted by the Association that this recommendation be concurred in.

Secretary reads last recommendation of the Committee as follows: "Where a continuance is sought, on affidavit, for the absence of a witness, shall the Court be allowed, in its discretion, to inquire into the probable truth of the affidavit?"

THE PRESIDENT.-This subject is now open for discussion. Mr. Fentress.-Mr. President: It seems to me that this is giving the Judge a sort of unusual jurisdiction. Instead of taking what the lawyers have to say, and giving due weight to what the witness may say as to the truth or falsity of the wit

ness' affidavit, it would seem that this is to invest the Judge with the power of going around among the neighbors and inquiring whether this witness is credible, or what is his standing in the neighborhood. It strikes me this is going a little too far-stretching the judicial authority a little too much. In other words, it is making a lawyer out of the Judge, bringing him down out of his judicial seat to the forum with the lawyers. Mr. Ruhm. Some casual remarks heard this morning brought up this question at the table. Will this meeting not ask Judge Williams, who has had long experience, to give us his views on the subject?

The President asked Judge Williams to give his views.

Judge Williams.—Mr. President: I do not know that I can give the members of this Association any light on this subject other than they already have. The granting of a continuance by the Judge is a judicial act just as any other act that he performs. Under the law as it now exists, I believe he cannot take any proof to contradict an affidavit, other than that which he finds in the record. If the affidavit contradicts what is found in the record, why then he certainly would have a right to not receive the affidavit; but, as is known by all the members of the Bar, you have no right to go outside of that to take evidence to disprove a fact set up in an affidavit; but the Judge is a judicial officer, and must act from the evidence before him. He must be convinced that the evidence is true, or he is not bound to grant the continuance. He is not bound to grant a continuance upon the application of any person, unless he believes that public justice requires it. If he believes that the affidavit is false, and that public justice demands a trial, he ought to proceed with it. That brings up the question as to what evidence ought to be given to determine this. I think a speedy trial is all any person could demand. That is all public policy requires, that the Judge may know whether the application is made to assist the cause of justice, or is made to delay it. It seems to me that the Judge ought to have the right to determine this judicial fact from having examined both sides of the question. It is very true, as has been suggested by the gentleman that would impose upon the Judge the necessity of going about and inquiring about the truth of the matter. I do not understand