Volume 44 — Tennessee Reports

PROM HENDERSON. There was a judgment in this case before a Justice of the Peace, in favor of Barnhill. Phillips appealed to the Circuit Court. At the - Term, 1866, the jury found for Phillips. Barnhill appealed. Judge W. P. Bond, presiding.

FROM OBION. In this case there was a judgment for Miller, administrator, at the-Term, 1867; from which judgment, Mrs. Kirby appealed, Judge Isaac Sampson, presiding.

PROM WEAKLEY. This was an action of replevin to recover a mule. At the — Term 1866, there was a verdict and judgment in favor of Riley; and an appeal by Parbam. Judge LuciaN Hawkins, presiding.

PROM MEMPHIS. There was a verdict and judgment in this case, at the January Term, 1867, of the Law Court oí Memphis, in favor of the plaintiff; from which the defendant appealed. Judge Thomas G. Smith, presiding.

PROM MEMPHIS. This suit was commenced before a Justice of the Peace, in Shelby County, who rendered a judgment against the defendants, who appealed to the Law Court of Memphis, when the case was submitted to the decision of the Court, upon an agreed state of facts. There was a judgment in favor of the plaintiff; and an appeal by the defendants. Judge Thos. 'Gr. Smith, presiding.

PROM MEMPHIS. This cause was tried the second time, at the April Term, 1861, on the law side of the Common Law and Chancery Court at Memphis, when there was a judgment for one cent in favor of the plaintiff; from which judgment he appealed. Judge Johh P. Caruti-ierS, presiding.

PROM HAYWOOD. There was a verdict and judgment in this case, at the - Term, 1866, of the Circuit Court, in favor of the plaintiff. The defendant appealed. Judge Wm. P. Bond, presiding.

PROM OBION, This was a contest about the validity of the election of Tax Collector for Obion County. At the April Term, 1866, the Collector presented his certificate of election and official bond, and asked to. be inducted into office. The County Court refused the application; and, at the May Term, 1866, of the County Court, the cause was again heard, and the application refused.

PROM TIPTON. This was an issue of devisavit vel non, tried in the Circuit Court of Tipton County, at the-Term, 1866, when the issue was found in favor of the Will. The contestants appealed. Judge G-eoRGe W. Reeves, presiding.

PROM MEMPHIS. This cause was heard by Chancellor Wm. M. Smith, at the — Term, 1866, when there was a decree in favor of the complainants, and an appeal by the respondents.

PROM MEMPHIS. This cause was heard, on bill and answer, at the - Term, 1866, of the Chancery Court at Memphis. Chancellor William M. Smith, dismissed tbe bill. Complainant appealed.

PROM MEMPHIS. This cause was heard before Chancellor William M. Smith, at the January Term, 1866, when there was a decree in favor of Watson; from which Able & Payne appealed.

FROM TIPTON. This cause was heard at the - Term, 1866, before Judge Geoege W. Reeves, presiding by interchange, when there was a decree in favor of the complainants. Erom which respondents appealed.

PROM PAYETTE. This cause was heard by Chancellor-at the - Term, 1866. There was a decree in favor of the complainants; and an appeal by complainants and respondents.

<p>X. B'eanchise Law. Charter of City of Memphis. The Branchise Law of the 3d of May, 1866, while it does not, in terms, repeal or modify the Charter of the City of Memphis, yet it had the practical effect to change the day fixed in the charter for elections, and, to that extent, worked a modification in the charter.</p> <p>2. Legislative power, to change or repeal Charter of Municipal Corporation. The Legislature has the legal right to change, alter, or repeal the charter of a public municipal corporation, at pleasure.</p> <p>3. Municipal Corporation. Failure to elect Officers, not a forfeiture of Charter. The failure of a municipal corporation to elect its officers, on the day fixed in the charter, neither at common law, or under our decisions and Statutes, takes away from the corporation the right to hold the election afterwards, when the annual day of election had passed without fraud or design; and its officers may hold over until the election or appointment and qualification of their successors: See Code, sec. 1481.</p> <p>4. Same. Terms of Officers. Power to elect new Officers. The Charter of the City of Memphis, and the Ordinances passed under it, limits the term of its officers to one year, or until the election and qualification of their successors. It follows, that, upon the election and qualification of a new Board, the old officers went out of office, and the new Board of Aldermen, after their organization, had full power to elect their officers.</p>

PROM DYER. At the hearing of this cause, before Chancellor JOHN Sommers, at the- Term, 1866, there was a decree in favor of the complainants; from which decree respondents appealed.

FROM HARDIN. There was a decree in this cause in favor of the respondents, at the-Term, 1866; from which the complainants appealed. Chancellor Robert H. Rose, presiding.

FROM FAYETTE. ■ There was a decree in this cause, at the - Term, 1866, in favor of complainants; from which the respondents appealed. Chancellor-, presiding.

<p>EROM GIBSON.</p> <p>There was a decree in this cause in favor of complainants, at the-Term, 1866, Chancellor John Sum-mees, presiding. Respondents appealed.</p>

PROM DYER. The jury in this ease, found the prisoner guilty of murder in the second degree, and sentenced her to twenty-one years’ imprisonment in the Penitentiary. There were motions for' a new trial and in arrest of judgment, which were overruled by the Court, and an appeal to this Court. Judge Isaac Sampson, presiding.

FROM TIPTON.. There was a trial of this cause at the May Term, 1866, and a verdict and judgment against the prisoner; from which he has appealed. Judge George W. Reeves? presiding.

FROM JEFFERSON. The defendant was indicted and ’ tried in the Circuit Court of Jefferson County, at the December Term, 1866; and under a plea of autrefois acquit by a General Court-Martial, established by the laws of the United States, and held at Chattanooga, Tennessee, on the 5th day of October, 1865, the jury found in favor of the defendant; and the Court pronounced judgment, that the defendant be discharged, &c. From which finding of the jury, and judgment of the Court,…

EROM WASHINGTON. At tbe March Term, 1867, tbe plaintiff in error, was convicted of murder in tbe second degree. A motion for a new trial was overruled, and be appealed, in error, to tbis Court. Judge R. R. Butler, presiding.

EROM SCOTT. The plaintiff in error was convicted of open and notorious lewdness, at the April Term, 1867, and appealed to this Court. Judge L. C. Houck, presiding.

EROM HAWKINS. The plaintiffs in error wore convicted, at the February Term, 1867, of involuntary manslaughter, and have appealed to this Court. Judge R. R. ButleR, presiding.

EROM GREENE. The plaintiff in error, was convicted of arson, at .-¡¡he February Term, 1867, and sentenced to fifteen years’ imprisonment in the Penitentiary. Motions for a new trial, and in arrest of judgment, were made and overruled, and an appeal taken to this Court. Judge R. R. Butler, presiding.

FROM KNOX. The plaintiff was indicted and convicted in the County Court of Knox County, for obstructing a public road. He asked an appeal to the Circuit Court of Knox County, which was refused by the Court. After this, he obtained writs of certiorari and supersedeas, and brought the case to the Circuit Court.

FROM HAWKINS. The plaintiff in error was indicted for -murder, and convicted, at the June Term, 1866, of manslaughter. From which he has appealed to this Court. Judge R. R. Butler, presiding.

EROM COOKE. At the July Term, 1867, the plaintiff in error filed a plea in abatement in this case, to which there was a demurrer by the State. The demurrer was sustained, and plaintiff in error allowed to plead over. The jury found in favor of the State, and an appeal was taken to this Court. Judge James P. Swan, presiding.

FROM MONROE. The plaintiffs in error, were sued as the principals and surety on a bond given to keep an orderly tippling house. There was a judgment against them, for the amount of the bond, at the January Term, 1860. Judge George Brown, presiding. Webbs appealed.

FROM ROANE. This was a suit against Yost et als., for taking the property of the defendant in error, during the rebellion. At the July Term, 1866, there was a verdict and judgment in favor of Stout, for $600; from which the defendants prosecuted an appeal to this Court. Judge E. T. Hall, presiding.

EROM CLAIBORNE. At the . May Term, 1867, the plaintiffs in error, made an application, in proper form, to change the venue, which was resisted by the defendant in error, who was allowed by the Court to read counter affidavits. The motion to change the venue was overruled, and a trial had, which resulted in a verdict of $6,000 for the defendant in error. Erom which, the plaintiffs in error, appealed to this Court. Judge James P. Swan, presiding.

<p>1. Change of Venue in civil causes. The plaintiff or defendant in a civil' action, can change the venue upon his oath, that he cannot have a fair and impartial trial where the same is pending, supported hy three impartial and credible witnesses, that the facts and statements of the party applying, are true, if the presiding Judge shall be satisfied that the causes set forth, are good, and the truth thereof evident, and credibly supported.</p> <p>2. Same. Same. Counter affidavits not allowed. Upon an application for a change of venue, made in conformity to the requirements of the Statutes, the opposing party will not be allowed to present counter affidavits that the statements made by the party applying, are groundless.</p>

FROM CLAIBORNE. On the trial of this case, at the May Term, 1867, the plaintiff below was allowed to challenge peremptory two jurors for each defendant, which was excepted to by the defendant. There was a judgment for $1,500, for the plaintiff, and an appeal to this Court by Blackburn and Henderson. Judge James P. Swan, presiding.

FROM GREENE. The defendants in error were convicted by three Justices of the Peace, for forcible and unlawful detainer. Within five days after the trial, they obtained from two Justices of the Peace, writs of certiorari and super-sedeas. A motion was made to dismiss the petition, which was dismissed;, and upon a trial, at the February Term, 1861, there was a verdict and judgment in favor of the defendants, and an appeal by the plaintiff.

PROM WASHINGTON. At the February Term, 1866, there was a judgment for the plaintiff, for $65.16, and cost of suit, against the defendant and his sureties on his prosecution bond. Judge R. R. ButleR, presiding. The sureties bring the cause up by writ of error.

EROM CLAIBORNE. At the May Term, 1867, there was a judgment against Wm. Jones, on a writ of inquiry, awarded at the January Term, and the record is filed in this Court for error. Judge James P. Swan, presiding.

FROM KNOX. At the October Term, 1860, there was a judgment in favor of the defendant in error, against John L. Moses, upon his answer as garnishee, for $ 160; from which he has appealed in error to this Court. Judge David T. Patterson, presiding.

FROM UNION. T At the May Term, 1867, there was a verdict and judgment in favor of the plaintiff, for $247.50; and an. appeal by the defendant. Judge Jambs P. Swan, presiding.

<p>Appeal. Final judgment. An appeal from the action-of the Circuit Court, can only he taken from a final judgment in the cause; and may he dismissed on motion of the defendant in error.</p>

PROM JEFFERSON. At the April Term, 1867, there was a verdict and judgment in favor of the defendant in error, for $8,000. A motion for a new trial was made, and overruled by the Court, and an appeal to, this Court. Judge James P. Swan, presiding.

FROM KNOXVILLE. At the September Term, 1867, of the Supreme Court of Tennessee, the plaintiff in error, in these two cases, filed his petitions in said Court to remove said causes (which were still pending in the Supreme Court) to the District Court of the United States held for the Eastern Division of Tennessee. The prayer of the petitioner was granted, upon his executing bonds, with good sureties, according to law.

EROM GREENE. There was a judgment in this case, by default, at a Special Term, December, 1866, against the plaintiffs in error; from which they appealed. Judge R. R. Butler, presiding.

PROM SEVIER. At the July Term, 1867, there was a judgment in favor of the plaintiff; from which the defendant appealed. Judge James P. Swan, presiding. After the judgment of the Court below was affirmed as to Sharp, a motion was made by his sureties in the appeal bond, for the Court to fix their liabilities.

PROM GREENE. At the October Term, 1866, there was a judgment against the plaintiff in error, on a petition for writ of error coram nobis, and ■ an appeal. Judge R. R. Butler, presiding.

PROM JEPPERSON. • At the October Term, 1866, of this cause was heard on bill and the Chancery Court, answer. Chancellor Seth J. W. Luckey dismissed complainants’ bill; and they have appealed to this Court.

FROM GREENE. This cause was heard on bill and answer, at the No-' vember Term, 1866. Complainant’s bill was dismissed; from which he has appealed to this Court. Chancellor Seth J. W. Lucicey, presiding.

FROM HANCOCK. There was a decree in this case, at the September Term, 1866, against Coleman, for the balance of two notes, given for the purchase money of the land; from which he appealed. Chancellor S. J. W. Luckey, presiding.

FROM GREENE. At tbe May Term, 1867, there was a decree in favor of the respondents; from which decree Bell and Wife appealed to this Court. Chancellor Seth J. W. Bucket, presiding.

FROM GREENE. At the November Term, 1866, there was a decree in favor of the respondents; and an appeal by complainants to this Court. Chancellor Seth J. W. Luoicey, presiding.

<p>1. Pauper oath, in lieu of bond, must be taken in open Court. After the Court has adjourned, at which a final decree in a cause was entered, and an appeal prayed, and time allowed the appellants out of “term time,” to give an appeal bond, the appellant cannot, instead of executing the bond, take and file with the Master, the oath prescribed by Statute for “poor persons f this oath must be taken in open Court.</p> <p>2. Same. Husband may take for himself and wife. Where the husband and wife are joint parties, it is only necessary for the former to take the oath; but it is otherwise, where this relation does not exist between the parties.</p>

FROM JEFFERSON. At the April Term, 1867, there was a decree pronounced against Noel and others, and in favor of the creditors of Headerick; from which Noel appealed. Chancellor Seth J. W. Leckey, presiding.

PROM UNION. There was a decree in this cause for the repondents, at the May Term, 1867; from which complainants appealed. Chancellor O. P. Temple, presiding.

<p>1. Sale ojt Lands. Lost memorandum, of sale must be specifically proven. In a proceeding to set up a lost instrument or memorandum of a contract for the sale of land, the contract must he proven specifically, and not in general terms; and it must appear who had the custody of it, and how it was lost or destroyed.</p> <p>2. Same. Same. Statute of Frauds. A memorandum of the sale of lands, to he effectual must he signed hy the party to he charged, and contain the substantial terms of the contract in itself, or in some writing to which it refers, with a description of the property agreed to he conveyed, with the boundaries of the lands or such other description as would reasonably identify it. Without these essential requisites, (even if the agreement or memorandum was present,) a Court of Equity would not execute it; and no less evidence of the contents of such written instrument, when the original is lost, will satisfy the demands of the law. The terms of a contract cannot be inferred, they must bo affirmatively proven.</p> <p>3. Same. Specific performance. When refused. To entitle the complainant to the specific performance of a contract, it should appear that it is fair, certain, just, equal in all its parts, and for an adequate consideration. A specific performance of a contract will not he decreed when it is hard or unreasonable in itself, or when, from mutual change of circumstances since the contract, the performance would be attended with particular hardship.</p>

EROM GREENE. At the November Term, 1866, upon exception to the report of Commissioners, assigning Mrs. Bayless her year’s support, there was a decree pronounced in her favor; from which the executors appealed. Chancellor Seth J. W. Luckey, presiding.

FROM GREENE. At the May Term, 1866, there was a final decree in this cause, against the defendant. On the 6th of Eeb-ruary, 1867, be filed a petition for a writ of error coram nobis, which was, on motion of complainants, dismissed, at the May Term, 1867; from which Arnold appealed. Chancellor Seth J. W. Bucket, presiding.

There was a decree in this cause, for the respondents, at the May Term, 1867; from which complain•ants appealed. Chancellor Seth J. W. Luckey, presiding.

<p>Dower under the Act of 1784. Widow’s Right after her Husband's Land is sold under Execution. The levy and sale of a man's land, and the payment of the purchase money, under execution, hy the Sheriff, passes only the equitable title to the land. And if the man dies before the execution of a deed by the Sheriff to the purchaser, he dies seized and possessed of the land, as contemplated by the provisions of the Act of 1784, giving the -widow the right of dower; and the subsequent execution of the Sheriff’s deed, after the death of the husband, cannot, by relation, defeat the right of dower which had attached.</p>

At 'the/ May Term, 1867, there was a . decree pronounced in favor of the respondent; from which complainants appealed; Chancellor ■ Seth JV W. Luckey, presiding. , ¡ ■ ¡

<p>1. Chancery Jurisdiction. Specific relief. General prayer in till. Where specific relief is sought by the prayer of a hill, a complainant at the hearing, cannot dissent to the relief he has sought, and, under the general prayer, ask relief of another description, unless the facts and circumstances charged by the bill, ■will, consistently with the rules of the Court, maintain the relief.</p> <p>2. Slate in the hands oe a Receiver when Emancipated. Owner’s loss. A defendant from whom slaves have been taken, and placed in the hands of a receiver by order of the Chancery Court, in accordance with the specific prayer of the complainant, cannot be held liable for the value of the slaves if lost to complainant, after they come into the hands of the receiver, by the act of the people emancipating them.</p>

FROM DYER. This is an appeal from an order of the Court below, made at the October Term, 1865, to supply a judgment that was rendered at the February Term, 1862, and which was alleged to have been lost, or destroyed. Judge Isaac Sampson, presiding.

FROM LAUDERDALE. There was a verdict and judgment, at the-Term, 1866, in favor of the plaintiffs; and an appeal by the defendants. Judge Isaac Simpson, presiding.

EROM MEMPHIS. At the - Term, 1866, there was a demurrer to the cross-bill of defendants, which was allowed by the Court, and their cross-bill dismissed; from which they appeal. Chancellor Wm. M. Smith, presiding.

PROM MEMPHIS. The petition of the Memphis Freight Company, to have certain lands in the city of Memphis condemned for the use of the company, was dismissed at the - Term, 1866; and they have appealed to this Court. Judge Geo. W. Reeves, presiding.

<p>EROM MEMPHIS.</p> <p>This hill was dismissed on demurrer of defendants. Chancellor W. M. Smith, presiding. Complainant appealed.</p>

FROM MEMPHIS. In this cause, at the June Term, 1866, A. J. Mohsan, Special Chancellor, pronounced a decree against Cheaves, the surety on the bond of complainant, for the delivery of the slaves in controversy, for three thousand dollars, the penalty of the bond; from which decree Cheaves appealed.

EROM TIPTON. There was a verdict and judgment in favor of the plaintiff, for $27, at the - Term, 1866; from which judgment, the . plaintiff appealed. Judge George W. Reaves, presiding.

FROM MEMPHIS. There was a verdict and judgment in this case, at the -Term, 1866, for the hank; from which the in-dorsers, E. M. Apperson & Co., alone, appealed to this Court.

<p>1. When the Code went into Effect. Right of Action before October, 1858, not affected by the Code. The Code of Tennessee went into effect on the 1st of May, 1858, and no right which had previously accrued is affected by its provisions, (Section 44;) and causes of action accruing before the 1st of October, 1858, are not to be af-eeted by the limitations declared in the Code, but are subject to existing limitations, (Sec. 47.)</p> <p>2. Statute of Limitations not arrested by the Death of a Party. If the Statute of Limitations commence running in the lifetime of a party, it cannot be arrested by his subsequent death.</p> <p>'3. Same. When Suits may be brought within one Year, to save the run- { ning of the Statute. The Act of 1815, chap. 27, and 1819, chap. 28, sees. 3 and 6, allow new suits to be brought to save tbe bar in three eases: 1st, Where judgment forthe plaintiff has been reversed for error; 2d, "Where judgment has been arrested; 3d, Where the defendant cannot be served with process. In these cases, if a new suit is commenced within one year, the Statute does not operate as a bar.</p> <p>4. Suits dismissed for Champerty, or hy Death of Party. A suit dismissed on account of the wrong (the champerty) of the complainant, is not within either of the exceptions, and cannot be commenced again within one year, and thereby save the bar of the Statute; but if a suit abates by the death of the party, it may be brought again within one year.</p> <p>5. Case in Judgment. A suit was brought in May, 1858,'against the administration of Kinney; and, on the 5th of February, 1861, the suit was dismissed for champerty appearing in the proof, but without prejudice. On the 23d of March, 1861, the present suit was commenced, which was dismissed on demurrer. Held, that the Statute of Limitations having commenced to run before the dismissal of the new bill, it formed a perfect bar to a new suit.</p>

EROM MEMPHIS. There was a decree in this cause, pronounced in favor of complainant; from which the respondents have appealed. Chancellor W. M. Smith, presiding.

FROM MEMPHIS. This cause was heard at the November Term, 1866, of the Chancery Court at Memphis, before Chancellor William M. Smith, who pronounced a decree in the cause; from which both parties appealed to this Court.

<p>1. Attachment Law. Construction of, in regard to Steamboats. When the owners of a Steamboat, residing in this State, are engaged in running their boat to and from a port in this State, making regular trips to ports out of the State, an attachment will not lie against said boat; the making of such regular trips not falling within the provisions of the attachment laws, authorizing the issuance of an attachment, when the debtor is about removing himself or his property out of the State.</p> <p>2. Same. Same. But, if the debtor is removing himself or his property, with the intention of not returning, or of defeating his creditor in collecting his debt; or the owner of a boat not engaged in a regular trade, is about to remove, with the intention of leaving the State, then the attachment will lie. The right to the attachment would depend on the facts of the case.</p>

PROM MONTGOMERY. This cause was heard before Chancellor Thomas H. BarRY, at the October Term, 1867, when a decree was pronounced; from which both parties appealed.

PROM MONTGOMERY. This iras an action for hire of two slaves, for 1864, before a Justice of the Peace, who rendered judgment for the plaintiff. The defendant appealed to the Circuit Court of Montgomery, when the case was submitted to ''aNjury, upon an ..agreed state of facts, who found in favor of^fbe> — defendant; from which verdict and judgment thereon, the plaintiff appealed to this Court. Judge John A. Campbell, presiding.

FROM ROBERTSON. At tbe October Term, 1867, Judge M. M. Beien, on motion of defendant, dismissed tbe petition of plaintiff for certiorari, to restrain tbe defendant from executing a writ of possession, issued by tbe County Court of Robertson County; from wbicb E. Porter appealed.

PROM MAURY. At the August Term, 1866, the original and amended petition of James R. Evans, for certiorari and su-persedeas, was, on motion of plaintiffs, dismissed; from which defendant appealed. Judge Hilary Ward, presiding.

FROM WAYNE. This cause originated before a Justice of the Peace, who gave judgment in favor of the plaintiff. The defendants appealed to the Circuit Court, where a trial was had, and a judgment rendered for the plaintiff, at the July Term, 1867. Defendants appeal. Judge Fielding' HuRST, presiding.

EROM ROBERTSON. At tbe November Term, 1867, Chancellor Thomas H. Barry dismissed complainants’ bill, and entered a decree against them and their sureties in the injunction bond, for the amount of the note in controversy. From which they have appealed to this Court.

FROM MONTGOMERY. At the October Term, 1867, Chancellor Thomas H. Barry ordered the biddings on a house and lot to be opened, upon an advance bid of twenty per cent, by the petitioners, Rice and Quarles, over the amount bid by the purchaser at the Master’s sale. From which order L. Weal, the purchaser, appealed.

FROM MAURY. At the January Term, 1867, this cause was submitted to a jury, who rendered a verdict in favor of Hig-den; there was a judgment pronounced by the Court, discharging the attachment, etc., and for costs, against the plaintiffs. Plaintiffs appealed. Judge HILARY Ward, presiding.

FROM CANNON. At the May Term, .1861, Chancellor Beomeield L. Ridley pronounced a decree in this cause, sustaining the deed of the 6th of April; from which decree Miner and the attaching creditors, have appealed to this Court.

PROM WILSON. Thompson, (the purchaser of three of the slaves sold in this cause,) at the October Term, 1865, filed his petition to be relieved from his purchase of the slaves in July, 1860. The Chancellor, John P. Steele, dismissed his petition, and gave judgment against him for the balance due on his note given for the slaves; from which decree, Thompson appealed.