Brownlow's Knoxville Whig. [volume] (Knoxville, Tenn.) 1866-1869, 1867-10-30
SUPREME COURT OPINION.
ASoxysILE, TENNESSEE, SEPTEMBER TERN, 1867.

N KNOXVILLE, TENNESSEE, SEPTEMBER TERN, 1867.
THOMAS II. eoIDsSlL, ArrOnSrY eysr,.r an ,,,o.,,,
v. A. BLAoKBuRN EFT AL, vs.. HoRATI0 HAWTHORNE
ms 4 an aeon 81 tfpAss c: a brought In the Gil
to recover damaSsS ~ ssslns .ns pansa ID sLIs
ment. -''' --@ '~'s -
The declaration is in the usual form 70 which III. plaintiff
error seysraly pleaded not guilty The sub
mltted 20 jury ct he May Term Iee7 ana resulted in
waS moved for which motion Va. oxsr-ssd To th .tia
Of the Court the plaintiffs error excepted and appealed
in error moved the Court or caps. ysng. ~ AZ
the following afddavit: 'Ths defendant william Neal
makes oath in due form behalf Of and The othsr AZ
PENDANTS that verify believes owing 10 he nreindce
sng in the public mind against the Caborn
county he therefore Prays change Of venue in this
order that faF trial may DO had which duly sworn e
In support Of this sdaV he offered to the Court and read
ne adaF OF ave esens OF the county, who made cath
that they have heard and read the foregoing affidavit Of VII
liam Neal and from their knowledge Of public sentiment IN
said county they believe said AFFIDAVIT in substance
and fact which signed and to in opep Court IN
the reading Of these daTits the defendant IN error ~
ered to read counter adavs to which the plaintiffs in
ror objected.
The objection overruled the counter adayis were
read to which the plaintiffs in excepted The Court
refused to change the venue and the tried and
rulted in the verdict aforesaid.
Many questions have been discussed in argument but in
the view we have taken the action Of the Cart IN
ting reading counter adays upon this application
change the venue it unnecessary notice them except
the action Of the Court upon that point -
The right trial by jury part Of our Jurisprudence
The bill Of rights declares sha ever remain nyeats
Ts carry out this proy that every one entitled to have
h 5Sq e ir . a%G
ded by law for change Of where appears 70 the
1886 Of the Code it provided he venue NAV be-
in civil by the plaintiff the defendant or both but
when the first change wa taken By section 1857 It is
provided the party apPyns e change sf shall make
statement OF facts "a writing under oath Animation
that verify believes that ing prejudice or other eau
then existing he Game. Vsa fair and impartial trial
in the fv.rhe hat
statement shall be yeEsd an supported by the oath of
least three rePeoaDe by section 2S II the Pre-.
the forth good ~ the truth thereof evidenced
1t was not b the Legsature as we think
the sections Of the Code to upon application to
change the venue that sdavits should Be heard to
resist the motion Tbs oath the party that he cannot have
fair and impartial tTs sported BY three credible wit
true was sufficient lorze the Court to Change the
If adav allowed will in effect de.
feat the purpose Of the at This Court held in the Of
Gassaway vs. Smith, Humh 1884, when the bill Of axcep.
ons did show the reass for refusing change
discretion to determined by the Court which may be
safely left to the exercise that discretion the Supervision
principle to correct tina where the record fails to dis
the for the action Of the Circuit
ing the change Court cannot reverse its dec
ion for the that N h absenee Of the facts that Rhu
enced the of the Circuit Court this Court cannc saw
that the legal dscrstonSsa improperly exercised ard
will presume it TO nave bes correct but where the action Of
the Court excepted to in lowing counter aavits to re-
ss the notion the prncp settled the case Of Gassaway
Smith does not apply e error Of the Court is per-
hitting them TO be read vhh construction Of
act be done We on the record that they
allowed and that srr The Court said In the case of
Kirk the state, oadNsl s4s, "Whers tho Legislature
has used words Of plain and sne mpert 1t would be
TO put upon them obstruction which amounts
pressed and if intention expressed in manner devoid
and Ambiguity no room for nterprs
tatou or construction tudees are not Al bertV on
considerations policy bshp to depart from the words
Of the statute that they hsvsao exceptions
transcend the boundary psratiug Judicial construction
from judicial legislation recognised principle Of OK
of Interpretation. Tie Legislature has defined the
in which the application shall be made has thrown
dsnsTssted psrsonShat the facts aud statements
made by the applicant are tn legal right to which
law entitled and If the recon dsose the for ths
action Of the Court SsSh s;pT. hin Of that right he can
the exercise Of dlcrsto Of hs Circuit Court he
where counter adavits have been aisd. In motion to
set aside cenfssSc taken - Chsncery the Court
said cit dangerous and ubtul practice, and ought
lot to be encouraged"
We with the views u Court expressed that
case, that the practice and of doubtful
policy To the rule to tie class would
defeat the object and intention the Legislature, and in
ny instances deprive the party trial by fair and impair
a jury. The ground for the eange IN this owing
the prejudice in the public mind against the plaintiffs in
Other may be alleged the affidavit and of this the
Court must judge and has st 10 determine whether they
supported under the rules Of w applicable to this class Of
1t was not designed or intended BY the Legislature
counter af5dsvits the statement eTe groundless.
There provision in the statute authorizing the read
ing of SUCH and think not the intention IL should
be allowed In the constructing of statute allowing
change of venue the Supreme Curt Of Indiana It'll ud Re-
ports Wtter Taylor held - the duty Of Court to
grant change of venue in civil If the adsvits be in
conformity with the Requirements Of the statute,
counter adavits be admitted resisting the motion This
though not authority upon he construction of stat
ute shows the construction paed upon statutes similar
this by respectable Court. tits insisted argument
OF the act passed March sth 1857 section
phlet o. regulates and eros the practice allowing
counter aday We think tat act has no application and
has changed the law authorizing change venue II
provided section Of the ct aforesaid where civil suits
have been removed from comfy where they orsi
nay brought they shall be trnssred back TO the comfy
where they originally broht, the affidavit Of three
Union men Of tn county where the suit
brought that justice may be onsali partiss.
This act explains itself, and have reference to
change Of venue from the the suit brought
1t has no application to this clso of and did not
thorize the Court to receive coulter effdsyits.
We therefore OF opinion tht the Court erred IN rece
ing afidayts in opposition to change of venue the
plaintiffs in are entitled have venue changed
therefore the judgment of the Ct Court will be reversed
and the cause remanded.
true copy. SHACKLEFoRD,
Test Judge,
". L. PATTERSON, Clerk