Volume 46 — Tennessee Reports

FROM DAYIDSOÍT. At the — - Term, 1868, a jury of Davidson County found the defendant guilty of murder in the first degree, with mitigating circumstances. The Court upon the recommendation of the jury, commuted the punishment to imprisonment for life; from which verdict and judgment of the Court, the prisoner appealed. Judge John Hugh Smith, presiding.

FROM RUTHERFORD. At the September Term, 1868, of the Criminal Court for Rutherford County, the plaintiff in error was, by a jury, found guilty of murder in the first degree, and sentence of death pronounced upon him; from which verdict and judgement he appealed. Judge JOHN Hugh Smith, presiding.

FROM WILSON. At tbe January Term, 1868, of the Circuit Court, the defendant was convicted for horse stealing, and from which he has appealed to this Court. Judge John ~W. Phillips, presiding.

FROM MONTGOMERY. At the September Term, 1868, tbe plaintiff in error pleaded guilty, and a jury was impaneled to fix the. punishment, who rendered a verdict for four years’ imprisonment ; from which he appealed to this Court. Chancellor Jas. O. Shackelford, presiding, by interchange with Judge John Alex. Campbell.

FROM DAVIDSON. At the September Term, 1867, this case was submitted to a’jury, who under the charge of the Court, returned a verdict in favor of the defendants, on which there was a judgment. Plaintiff appealed. Judge Manson M. Brien, presiding.

FROM WILLIAMSON. At the July Term, 1867, this cause was submitted to a jury, who found for the contestants; from which the plaintiff appealed in error, to this Court. Judge Manson M. Brien, Sr., presiding.

PROM WILLIAMSON. This case came to an appeal from a Justice’s Court to the Circuit Court. At the November Term, 1867, there was a judgment for the defendant, Buchanan; plaintiff appealed. Judge Manson M. Brien, Sr., presiding.

PROM WILLIAMSON. At the July Term, 1867, there was a verdict and judgment in this case for the defendant in error. A motion for a new trial was entered and continued to the November Term, when the Court refused a new trial. The plaintiffs in error have filed the record for error. Judge Manson M. Brien, Sr., presiding.

FROM DAVIDSON. At the September Term, 1868, this cause was Submitted to a jury, who rendered a verdict in favor of the plaintiff below, for $5,000, on which there was a judgment against the railroad; from which it has appealed to this Court. Judge Eügene Cary, presiding.

FROM DAVIDSON. At the May Term, 1867, this canse was submitted to a jury, who found for the plaintiff, from which the defendant appealed to this Court. Judge M. M. Brien, Sr., presiding.

FROM DAVIDSON. Tbis case was beard at tbe April Term, 1866, before Chancellor David Campbell, wbo pronounced a decree in favor of complainant; from wbieb respondent, Alloway, appealed.

FROM DAVIDSON. This cause was heard by F. B. Fogg, Special Chancellor, at the October Term, 1867, who pronounced a decree in favor of complainant; from which the respondent appealed to this court.

FROM DAVIDSON. This cause was heard at the April Term, 1867, by ¥m. E. Cooper, special Chancellor, who decreed in favor of the complainants; defendants appealed.

FROM DAYIDSON. There was a demurrer in this cause by the defendant, which, at tbe April Term, 1867, was allowed by tbe Chancellor, and tbe bill dismissed from which tbe complainant appealed. Chancellor -, presiding.

FROM MONTGOMERY. This cause was heard by Chancellor J. F. Lauck, at Chambers, who dissolved the injunction, and allowed respondents to proceed to collect the school tax; complainants filed the records in open court, and asked for a supersedeas from this Court.

<p>1. Registbation on Mobtgage. Constructive notice. Subsequent creditors. The registration of a mortgage is constructive notice to all persons. Subsequent creditors cannot complain of the transaction being 'fraudulent, unless they can show that the object and intention of the conveyance was to perpetrate a fraud, and avoid subsequent indebtedness.</p> <p>2. Fbaudueent conveyance. Reservation of an interest by the bargainor. Lewis, Perrin & Co., conveyed, in trust, to J. G. Parkhurst, a stock of drugs in Nashville, to secure the payment of money loaned to them on the same day, by Parkhurst; which deed recites, that Lewis, Perrin & Co., are to continue their daily sales from said stock, unless Parkhurst deems it necessary for his protection, to take possession of the same. Held, that the transaction appearing to have been bona fide, to secure the payment of the money loaned, it is not fraudulent, in fact nor in law, but a valid and subsisting surety for the money advanced.</p> <p>3. Same. Same. A stipulation in a mortgage or assignment that the note secured should be paid out of the proceeds of the sale of the goods mortgaged, and a sufficient amount only of the sales to be retained by the mortgagor to keep up the stock, is not such a reservation to the use of the mortgagor as would vitiate and render the conveyance void.</p> <p>4. Noting on Deeds nob Registbation. A deed withdrawn before registration, loses its priority. On the 8th of February, 1866, a conveyance was acknowledged in the State of Ohio, before a commissioner of deeds for this State; and, on the 28 th of February, was noted by the Register of Davidson County, and withdrawn from the office the same day, by the bargainor, or his agent. On the 12th of March, 1866, a conveyance for the same property, to James Hickman, was noted and registered, in the office of said county. Held, that the noting of a deed which is withdrawn before the registration, by the party taking a beneficial interest under it, gives it no priority. The register is required by law, to spread upon his books, deeds, in the order in which they are filed, and the noting in his book is the evidence of the filing; but if the deed is withdrawn before registration, by the party or his agent, its priority is gone, and it only takes effect from the date of the return of the deed into the office of the register.</p>

<p>1. Land talcenfor public use, a/nd without compensation, the owner may enjoin until compensation is provided. A person whose land has been taken for public use, without compensation, has the right to enjoin the taking, and have it declared void, unless compensation is paid or provided.</p> <p>2. Same. A Municipal Government may bind the public, in regard to opening and closing streets. A municipal government has power to hind the public, in regard to opening and closing streets, and to abandon them, and thus he exonerated from keeping them in repair for public use.</p> <p>3. Same. Same. Publicuse. Private Property. Owner's compensation. But, in addition to the use of it, owners of property bounding on a street have an easement of way in it, which is private property, and can only he taken for public use upon compensation.</p> <p>4. Same. Same. Persons 'not parties to suit in reference .to an easement of way, not bound. The municipal corporation does not represent the owners of the easement, and a decree where they are not parties does not hind them, nor deprive others of their property.</p> <p>5. Same. Same. Proceedings to establish public streets not strictly a judicial proceeding, but a political power. A proceeding to establish a public highway is not a strictly judicial proceeding. It is summary, and to some extent ex parte, in a tribunal exercising in the case a special jurisdiction. The taking of private property for public use is a political power, and its necessity and utility belongs exclusively to the Legislature, and as to these, the courts have no jurisdiction, authority or control; but whether the taking is a public use, and is within judicial cognizance.</p> <p>6. Legislative power to take private property for publicuse. The Legislature has power to take private property for public use, by direct statute, or may delegate it to agents who may exercise the same discretion, subject to the empowering statute.</p> <p>7. Same. Same. Property taken without notice to the owner. The property may be taken, if the Legislature so chooses, without notice to the owner of the taking or proceedings to take.</p> <p>8. Same. Same. The owner entitled to notice of assessment. But the owner is entitled to notice of assessment of compensation.</p> <p>9. Same. Same. Compensation for property. Property may be taken before compensation is actually paid, but it must be made. If an adequate remedy is applied to enforce compensation, it is sufficient.</p> <p>10. Same. Same. Owner may waive his right. A person may, in case of this kind, waive a constitutional, as well as a statutory provision, for his benefit.</p> <p>11. Same. Same. Actions contesting the right of way. In an action controverting the right of way, the party whose land was taken may show that no compensation was assessed, paid or provided for; no waiver was made, and no adverse user had repealed into a right; but a stranger can not assail the validity of proceedings on these grounds.</p> <p>12. Same. Same. Property must be taken for public use alone. The rulings of this case are designed to apply only to cases of the kind in hand, viz.: where the taking and use are absolutely for the public. How far they apply to railroads and the like corporations, it is not the purpose of this opinion to determine.</p>

EBOM DAVIDSON. Tbis cause was beard at the April Term, 1867, before Chancellor David Campbell, when there was a decree for the complainants. Respondents appealed.

EROM KNOX. At tbe June Term, 1867, tbis cause was submitted to a jury, wbo rendered a verdict in favor of tbe plaintiff, on which there was a judgment and appeal to this court by the defendant. Judge Elijah T. Hall, presiding.

<p>1. Lost Deed. A deed not void for champerty or fraud, or for the violation of some public policy, will be set up. If a lost deed sought to be set up, were void for champerty or fraud, or because executed in violation of some rule of law or public policy, then a court of equity would not lend its aid to establish it. But where the illegality complained of is not sufficient to avoid the deed, or prevent the vesting of title, it cannot be sufficient to prevent the holder of the title from enforcing it in the courts.</p> <p>2. Same. Confederate money. Executed contracts. Case in judgment. Montgomery purchased of Kerr, in 1862, a tract of land, for which he paid him four thousand dollars in Confederate money; took a deed in fee simple, which was witnessed and delivered, but lost. He filed his bill to establish the lost deed, or that the title be divested out of Kerr; which was resisted by Kerr, on the ground of the illegality of the consideration. Held, that this Court will not disturb an executed contract of this character; and that complainant is entitled, by virtue of and under said deed, to hold the land in fee simple; and that Kerr has no right, title or interest therein.</p>

FROM BLOUNT. At the December Term,- 1866, this cause was heard before Chancellor O. P. Temple, who dismissed the bill, and complainant appealed to this Court.

<p>1. Defect in becobd. Cause remanded far additional proof. When it appears from the record presented to the Court for the determination of a cause, that more satisfactory evidence can be obtained upon the questions presented for its decision, and if produced, will enable the Court to come to a more satisfactory conclusion, the cause will be remanded to the Court below, for additional proof.</p>

PROM KNOX. There was a decree in this cause at the July Special Term, 1867, in favor of the defendants, and an appeal by the complainants. Chancellor Seth J. W. Ltjckey, presiding, by interchange.

FROM KNOX At tbe May Term, 1867, there was a decree for the complainants, and an appeal by the defendants. Chancellor Seth J. W. Ltjckey, presiding.

FROM GIBSON. There was a demurrer to the indictment in this case, which was allowed by the Court, at the March Term, 1868. The State appealed. Judge John A. Rodgees, presiding.

FROM MEMPHIS. The plaintiff in error was, at the-- Term, 1868, of the Criminal Court, found guilty of murder in the first degree, and after motions for a new trial and arrest of judgment were overruled, sentence of deatli was passed upon him; from which verdict and judgment, he appealed to this Court. Special Judge, Joseph E. Bigelow, presiding.

EBOM MEMPHIS. Tbe plaintiff was indicted and convicted at the September Term, 1868, of the Criminal Court, for horse stealing; from which he appealed. Judge ¥m. HuN-teb, presiding.

FROM MEMPHIS. This cause was submitted to a jury at the - Term, 1868, who returned a verdict against the defendant, of murder in the first degree. Motions for a new trial and in arrest of judgment, were made and overruled, and sentence of death passed upon the defendant; from which he has appealed to this Court. Special Judge Joseph E. Bigalow, presiding,

PROM MEMPHIS. At the-Term, 1869, the defendant demurred to the indictment in this case. The demurrer was sustained by the Court, and the State appealed. Judge ¥m. Hunter, presiding.

EROM MEMPHIS. At the - Term, 1868, there was a judgment against' the'Memphis Gas-light Company for taxes assessed upon their gas-pipes, laid through the streets of Memphis to convey gas to the consumers of the gas manufactured by the company; from -which they appealed. Judge James Q. Pieb.ce, presiding.

PROM HARDIN. This cause was heard by Chancellor James M. Dougherty, at the-Term, 1868, who pronounced a decree in favor of complainants; from which respondent appealed to this Court.

FROM MEMPHIS. At tbe-Term, 1868, upon an application of the defendants in error, a peremptory writ of mandamus was awarded in this case; from which plaintiff appealed to this Court. Judge H. S. Lee, presiding.

PROM SHELBY. At the April Term, 1868, upon the report of the grand jury, and notice to plaintiff in error, of the deficiency in the amount of his bond as trustee, and on account of the insufficiency of his sureties, the Circuit Judge removed him; from which ofder and judgment of removal, he has appealed to this Court. Judge George W. Reeves, presiding.

PROM MEMPHIS. In this case, a distress warrant was issued by Logue, as County Court Clerk of Shelby County, against the defendant, for failing to pay a tax upon his dray. The case was brought to the Common Law Court, by certiorari; on motion, the certiorari was dismissed, and McGrath appealed to this Court. Judge H. S. Lee, presiding.

FROM MEMPHIS. At the - Term, 1867, there was a judgment for the defendant, and an appeal by the plaintiff. Judge Thomas G. Smith, presiding.

EROM MEMPHIS. At the April Term, 1866, there was a verdict and judgment in favor of the plaintiff; .from which the defendant appealed to this Court. James O. Pierce presiding.

PROM MEMPHIS. This cause originated before a Justice of the Peace. There was a judgment in favor of the express company, and an appeal to the Municipal Court of Memphis. The cause was heard and a judgment rendered at the September Term, 1868, for the defendants, and an appeal by the plaintiff. Judge Geo. W. Waldron, presiding.

FROM MEMPHIS. This cause was tried in the Municipal Court of Memphis, at the April Term, 1868, when there was a judgment against the defendant; from which she appealed to this Court. Judge George W. WaldroN, presiding.

FROM MEMPHIS. This cause was tried at the December Term, 1867, when there was a verdict and ■ judgment in favor of the defendant; from which the plaintiffs appealed. Judge J. O. Pieece, presiding.

FROM MEMPHIS. At the April Term, there was a verdict and judgment’ in favor of the plaintiff; from which the defendant appealed to • this Court. Judge Thomas G. Smith, presiding.

FROM MEMPHIS. The plaintiff in error was fined ten dollars by the Police Commissioner for the City of Memphis, and appealed to the Municipal Court, where the judgment of the Commissioner was affirmed; and he has appealed to this Court. Judge George W. Waldron, presiding.

EEOM MEMPHIS. This case was tried at the April Term, 1867, when there was a demurrer -to defendant’s plea of res judicata, which demurrer was overruled by the Court; the plaintiff refused to reply, and final judgment was rendered for the defendant; plaintiff appealed. Judge Thomas G. Smith, presiding.

PROM MEMPHIS. At the - Term, 1868, there was a verdict and judgment in this cause, for the plaintiff, and an appeal to this court by the defendants. Judge James O. Pieece, presiding.

PROM MEMPHIS. Tbis case was tried at tbe --- Term, 1868, when there was a judgment for the defendant; the Mayor and Aldermen appealed. Judge George W Wald RON, presiding.

PROM MEMPHIS. Upon the trial of this cause in the Law Court of Memphis, there was a judgment in favor of the defendant; and an appeal by the plaintiff. Judge James O. Pierce, presiding.

EKOM SHELBY. At the - Term, 1868, of the Shelby Circuit Court, the petition of plaintiff in error for a certiorari and supersedeas was on motion of the defendant, dismissed; from which order dismissing the petition, there was an appeal to this Court by the plaintiff. Judge Geokge W. Reeves, presiding.

EROM MEMPHIS. Term, 18 — , there was a decree At tbe in this cause in favor of tbe complainant; from which respondents Raye appealed to this Court. Chancellor William M. Smith, presiding.

PROM MEMPHIS. This cause was heard at the August Rules, 1867, when there was a pro confesso against H. Finnie and White. White obtained a supersedeas, and brought the cause to this Court. Chancellor William M. Smith, presiding.

EROM MEMPHIS. These causes were heard together, before Chancellor William M. Smith, at the - Term, 1867'; when there was a decree for the complainants, and an appeal by the defendants.

EBOJI MEMPHIS. This cause was heard at the - Term, 1866, when complainant’s bill was dismissed; from which decree he has appealed to this court. Chancellor William M. Smith, presiding.

<p>FROM MEMPHIS.</p> <p>At the - Term, 1867, there was a decree in favor of the Gayoso Savings Institute; from which Jones, Brown & Co., appealed. Chancellor William M. Smith, presiding.</p>

FROM MEMPHIS. There was a demurrer to this bill by Nance, wbicb was allowed by the Court, and an appeal to this Court. Chancellor ¥m. M. Smith, presiding.

FROM MEMPHIS. The Chancellor in this cause, pronounced a decree in favor of complainants; from which respondents appealed to this Court. Chancellor War. M. Smith, presiding.

FROM MEMPHIS. This cause was beard in June, 1869, before Chancellor William M. Smith, who granted an injunction against Boughner, to exercise the right, or perform the duties of Register of voters for Shelby County. The cause is in this Court, upon the application of Bough-ner to supersede said order of the Chancellor.

PROM MEMPHIS. This cause was heard at the-Term, 1867, when there was a decree in favor of the complainant; and an appeal to this Court by respondents. Chancellor William M. Smith, presiding.

FROM MEMPHIS. At the May Term, 1868, there was a decree in this cause for the amount of money loaned, and interest thereon, and a sale of the land mortgaged, ordered; from wbicb decree tbe respondents appealed. Chancellor William M. Smith, presiding.

FROM MEMPHIS. There was a decree in this cause, at the February Term, 1867, in favor of complainant, from which the respondent appealed to this Court. Chancellor William M. Smith, presiding.

FROM MEMPHIS. At tbe November Term, 1866, there was a decree in favor of complainants; from which respondents appealed to this Court. Chancellor William M. Smith, presiding.

FROM HARDIN. At the July Term, 1866, there was a verdict and judgment in this case for the plaintiff; and an appeal to tbis. Court by the defendant. Judge FieldiNG Hurst, presiding.

FROM GRAINGER. This cause was before this Court at the September Term, 1866, and was reversed. At the August Term, 1869, it was again tried by a jury, who found defendant guilty of murder in the second degree, and fixed his imprisonment to ten years in the penitentiary; there was a motion for a new trial, which was overruled, and an appeal to this Court by the defendant. Judge James H. Randolph, presiding.

FROM KNOX. The prisoner was convicted at the February Term, 1868, of larceny, and sentenced to imprisonment in the penitentiary for three years; from 'which -judgment he has appealed to this Court. Judge Elijah T. Hall, presiding.

FROM JEFFERSON. This is a petition filed in this court to compel Judge James H. Randolph to issue a mandamus, to determine whether the petitioners were entitled to bail.

FROM KNOXVILLE. The plaintiff in error, was convicted at the August Term, 1868, of the County Court, for obstructing a public road; and has appealed to this Court. Judge C. W. Jones, presiding.

FROM KNOX. The plaintiff in error was indicted in the Circuit Court, for an assault with intent to kill, etc. At the June Term, 1868, he was acquitted of the felony, and found guilty of an assault, and fined by the Court. Judge Elijah T. Hall, presiding. The record is filed for error.

EROM BLOTJNT. The defendants were tried at the May Term, 1869, and found guilty of murder in the second degree; on motion of the defendants the judgment was arrested, and the State, by its Attorney-general, Jas. M. Thorn-burg, appealed to this Court. Judge Elijah T. Hall, presiding.

FROM KNOX. This cause was tried at the - Term, 1869, of the County Court of Knox County, when there was a verdict and judgment against the defendant, and an appeal by him to this Court. Judge C. W. Jones, presiding.

FROM KNOX. At the June Term, 1869, the indictment in this case, was, on motion of the defendant, quashed by the court. The State, by its Attorney-general, James M-Thornburg, appealed to this Court. Judge Elijah T. Hall, presiding.

PROM HAMILTON. The defendant was indicted for failing to take out license as a butcher. At the June Term, 1869, on motion of the defendant, the indictment was quashed. The State appealed. Judge William L. Adams, presiding.

FROM BLEDSOE. At the September Term, 1867, there was a decree for the complainants; from which the respondents appealed. Chancellor DaN. C. Trewi-iitt, presiding.

EROM BRADLEY. At the September Term, 1866, there was a verdict and judgment against the defendant, from which he appealed to this Court. Judge WilliaM L. Adams, presiding.

FROM POLK. This cause was tried at the May Term, 1867, when there was a verdict and judgment in favor of the plaintiff; from which Boyd appealed. Judge William L. Adams, presiding. '

PROM KNOX. At the July Term, 1867, there was a decree in this case for the complainant, and an appeal by respondent. Chancellor O. P. Temple, presiding.

FROM HAMILTON. At the February Term, 1861, this cause was submitted to a jury, who returned a verdict for $7,000 damages against the Railroad; on which there was a judgment, and an appeal by the Railroad Co. Judge JOHN C. Gaut, presiding.

PROM MARION. At the March Term, 1868, there was a verdict and judgment in this cause, in favor of the Railroad Company; the plaintiff appealed to this Court. Judge William L. Adams, presiding.

FROM CAMPBELL. This cause originated before a justice of the peace, and was brought by appeal to the Circuit Court, at the April Term, 1866. There was a judgment for the plaintiff. The defendant appealed, in error. Judge L. C. Hotxk, presiding.

PROM CAMPBELL. This is a petition for a peremptory mandamus to compel the Chairman of the County Court of Campbell County to isssue to the President of the Knoxville and Kentucky Railroad Company, fifty thousand dollars in county bonds of said county, which the re-lators claim to have been ordered to be issued by the County Court.

PROM CAMPBELL. At the December Term, 1866, the Court granted the application of James Williams to remove a cause then pending in the Circuit Court of Campbell county, against him to the District Court of the United States; which application was granted, and an order for the transfer made. The Court gave judgment against Williams for all the costs that had accrued in the State Court; from which judgment Williams appealed to this Court. Judge L. C. Hour, presiding.

FROM MONROE. At the December Term, 1867, there was a decree in this cause, confirming the partition of the land, and giving to the widow a portion of the land in fee, in lien of her dower. From which there was an appeal to this Court, by Jackson and Wife, and one of the minors, by his next friend. Chancellor Samuel B. Bogers, presiding.

FROM BRADLEY. At the August Term, 1867, tbe Chancellor directed an issue of fact to be made up in this cause. A jury was impaneled to try the issue, who failed to agree; and at the February Term, 1868, another jury was impaneled to try the issue between the parties, by order of the Court at the last term. The jury found for the complainant, and a decree was entered in his favor; from which decree respondents appealed to this Court. Chancellor ÜAN C. Trewhitt, presiding.

FROM BRADLEY. The note sued on in this case was executed on the 18th of January, 1862, bearing interest on its face at the rate of ten per cent, per annum. Upon the execution of the note sued on, the plaintiff delivered up a note that was due, and bearing interest at the rate of six per cent, per annum. At the September Term, 1866, there was a judgment for the plaintiff for the amount of the note and six per cent, thereon. The defendants appealed to this Court.

FROM M’MINN. At tbe May Term, 1868, there was a judgment for the complainant; from which respondents appealed to this Court. Chancellor DaN. C. Teewhitt, presiding.

FROM BRADLEY. At the January Term, 1867, there was a judgment in this case for the plaintiff, from which the defendants appealed. Judge William L. Adams, presiding.

FROM HAMILTON. At tbe April Term, 1868, there was a decree in this case, in favor of complainants; from which there was an appeal to .this Court by respondents. Chancellor Dan. C. Trewhitt, presiding.