Public ledger. [volume] (Memphis, Tenn.) 1865-1893, 1878-01-11
IMPORTANT DfUlsIOs
In the Hackett. LOewenstine Case BY
Judge Morgan, Of the Chan.
Gerry COurt-A New
Trial Granted.

Judge Morgan, of the Chancery Court,
to-day delivered an sble opinion in the
case CT G, b. Hackett VS.. D. G. b II. NJ.
Loewenstine, which was to recover from
defendants certain sums Of money which
plaintiff had surrendered. The sum of
about $l7, OOO was given by Hsckett and
received by defendants as restitution for
the money which they alleged he had
stolen. Hsckett was convicted, and
after going to the penetentisry was par
doned. He then instituted suit and
gained judgment. Judge Morgan to-day
granted the motion Of defendants for a
new trial, his opinion being as follows:
Ought these defendants to have a new
trial2 New trials are not granted in the
Appellate Courts upon the facts unless
there is . very great preponderanee of
testimony against the verdict. In the
courts below there is more latitude for
the reason OF the restriction above. The
court below can aud ought 10 exercise
this discretion when the weight Of the
evldspce is greatly against the verdict
Does The proof sustain this vesdict2 l
think rot Upon the contrary the great
weight of proof is against it; so much
so that | think il would tall within the
rule provided by the Supreme Court for
its own guidance.
As to the first issue, whether the de-.
PENDANTS received from complainant in
settlement more than be stole from them,
the jury found this issue for complain
ant. There was but little, if any proof
from complainant establishing this pro
position except cireumstantial.
The proof OF defendants showed that
there we're five witnesses at different
times who heard complainant say that
the bonds, or the greater part of them,
we're the product OF what be stole from
Northumberland, Ensberger, Colonel
MeRae, D. G. and Il. NJ. Loewenstine.
Two Of these we're defendants, but three
of them were disinterested witnesses.
They we're, it is true, admissions made
by complainant, but made ct different
times and under different circumstances,
voluntarily, to Intelligent witnesses.
This is a high class Of evidence when
made as above stated.
There are also circumstances to
strengthen this conclusion. The proof
shows Tat Hackett was the owner in
July, 1868, of about $4,000 in bonds, and
in September, 1871, a little over two
years alter, the owner Of about $l7 ,000,
an increase of about $l2, 900, he being a
clerk upon a salary o exceeding $1,000
per annum The $4,000 will account for
the money that he showed be had when
he went to live with defendants; the bal
ance, $l2, 900, accumulated in little over
two years unaccounted for. The great
prepoDderancs Of the proof is against
the finding upon this issue.
The result of this issue is a pregnant
fact upon all the issues that follow it
for if this issue is against the complain
ant the burden Of proof is upon him tc
establish the fraud and undue inhuence.
duress, threats and intimidations. These
must be proven by the complainant to
the satisfaction OF reasonable minds
The proof upon these Issues by the com
p%lainant is very weak, and are only sus
tanned by a few circumstances. The
proof OF defendants is fuller and more
satisfactory, though they might have
rested upon failure Of complainant tC
make out his case The testimony OF Hor
rigau, McRae and the two Loewenstinel
is foil of denial Of the issues.
The issue involving the compoundin(
t a felony is somewhat better suggested
than is some proof tending TO sustain
this issue, but it is not sufficient Of itself
and is overcome by the proof OF defend
ants.
Gen. Horrigan states that the agree
ment made to submit the cases, upon
plea OF guilty twelve in number-wat
made between him and Gen. Sale with
the appreciation of the attorney general
The term fixed was one year for each OIL
the twelve cases. Aud that Hacket
agreed to settle the civil suit already
pending in New York. And that the
defendants would do what they could to
have him pardoned procuring a pardon
after conviction is not offensive to the
law Horrigan also stated that be told
the defendants Of this, after the agree,
ment was made, and they assented to it.
The agreement and settlement of the
: New York suit, the transfers ofthe bonds,
we're made after conviction. This is
not compounding a felony. Parties
whose goods and property are stolen
have the right to recover it and if they
do not compound the crime their con.
duct is not reprehensible.
In the whole conduct of this settle.
ment the proof shows that the complain.
ant, Hsckett, had the aid and assistance,
and often the presence of able and eff.
eient counsel
With the case as it now stands, the
verdict of the jury should be set aside.
So ordered
Wright and Fowlks for plaintiffs
CAN'T, Patterson & Love, Estes & Eli
OFT, h.. & E. Lehman, for defendants.
VenisOn Hams and Saddles,
QuaiIs, Squirrels, Rabbits,