The Bolivar bulletin. [volume] (Bolivar, Hardeman County, Tenn.) 1865-1888, 1871-06-23
Supreme Court Deelsioas.
Thomas B Cooke, ct ais, VS.. John
G. GOoch, eft ais
OPINION.

such part taken off
On the 10th of December, 1870, the |
Legislature passed an act entitled "An
act to establish the county of Bell in hon
or of that distinguished statesman, patriot
and son of Tennessee, the late Hon. John
Bell"
Ills act defines in terms the bounda-
ries of said county, and appoints commits
sioners the (defendants), prescribing
their duties in the organization of said
couRty, amongst them providing, that
said commissioners be and they are
hereby directed to cause an election TO be
held, after giving twenty days notice, at
such time as they may deem proper, in
three or more places in each of the fruc-
tons stricken off from Uardeman and
Fayette, and one in MeNairy county, fol
the purpose of ascertaining whether a
constitutional majority of the people re-
siding in these fractions are in favor of or
opposed to the establishment of Bell
county, and all male citizens of the Uni
ted States of this State Of the age of TWEEN
tyone years, and being a resident in said
fraction in which he may offer his vote six
months next preceding the day of cleo
ton shall be entitled to vote" etc, etc.
After having advertised the twenty
days, the commissioners on the ODD Of
February, 1911, proceeded to hold an
election "a provided for in said act, with
the result of Anew County" G23 votes;
for "Old County" l23 votes-making a
total of votes cast 746.
In April, 1871, compliments, Justices
Of the peace for Fayette county, filed this
bill, charging with other allegations,
THAT the facts show that two-thirds of
the qualified voters living in said fraction
taken from Fayette did not vote for the
establishment of Bell county" and pray
ing that the commissioners be enjoined
from further proceeding in the matter of
organizing the county, and that the frae~
ton taken off from Fayette be restored,
etc.
To this bill there was full answer, con,
tanning causes of demurrer, which were
set for argument, those necessary to be
noticed under the view we have taken are
! list, because all the material allegations
are upon information and belief, and the
affidavit is to the best of atlantis knowl-
edge, information and belief
ID Because the constitution does not
require two-thirds of the whole number
of voters who actually reside in the frac-
ton, but only two-thirds Of those vino
vote,
AS to the first ground, the two parts
making substantially the same ground,
we answer that if matter, essential to
the determination of the plaintiff claim
is charged to rest on the knowledge of
the defendant, or must of necessity be
within his knowledge and is consequently
the subject of part of the discovery
sought by the bill, precise allegation is
not required. Such is the rule as an.
nounced by both Milford and Story in
their works on equity pleading.
the defendants come very clearly
within it, they were the parties dcsignat-
cd by law with their duties defined to
complete the establishment of the coun.
ty. Certain facts are alleged, which if
true, it is insisted make them guilty Of a
neglect or violation of duty. When they
undertook the discharge of those duties,
they were compelled to have done every
thing necessary to their perfect execution,
therefore the facts of commission OF
omission attending their action, must OF
necessity be within their knowledge.
If a contrary rule obtained it, it would
frequently fall out that parties whose
rights are being appropriated or trespass-
cd upon by another could find no relief
by invoking the extraordinary hid of
courts of equity restraining the injurious
act until the right of property or posses
sion could be determined by the courts
As for instance, in cases Of absence from
the place at the time of the wrong com
planned of, individual ignorance of The
facts constituting tho wrong, the doing oil
an act injurious to another under the
pretence, or even with the honest belief
that it is done in pursuance of lawful
right or power.
AS where party in interest may roG
sonably doubt of the legal construction
to be given to the act, and tho like, dem,
onstrating the correctness of che rule VIC
have repeated.
The second assignment will be noticed
when we speak Of the merit it controls in
tho case.
The Chancellor over ruled tho demur
ror, and the cause was heard upon an
agreed state of facts, which are, that al
though moro than two thirds of those who
voted on the ODD of February voted in
favor of the now county, yet the number
so voting was not equal to twO-thirds Of
the qualified voters in the part taken off
tis insisted by compliments thai
there must Mt least he an actual consent
of an entire two thirds of the qualified
voters And by dolcndants-that two
thirds Of the votes cast is the meaning o.
the constitution, and must control with
out regard to those entitled to, but whC
, do not vote.
Art. 1, section Of the constitution de
: fines qualified votors to be Every male
person Of the age of twenty one years be
ing citizen of the United States and {
resident of this State for twelve months
, and OF the county wherein he may Offer
his vote for six months next preceding