Knoxville daily chronicle. [volume] (Knoxville, Tenn.) 1870-1882, 1881-10-02
SUPREME COURT OPINIONS.
[ Reported for the CHRONICLE by L. TIL
man Jr September Term 1881 |

reported for the CHRONICLE by l.. TIL
man, DR., September Term, 1881.
I,edictnaent-su.tfc ient-Sehea.-1. An in
dictment charging that the prisoner un-
lawfully and feloniously did steal, tako and
carry away certain goods with intent to de-
priye the owner thereof, is good without
alleging in addition that the goods we're
taken without permission of the owner
Wedge and others vs. State. Cooper, J.
The State caR1eot be sued.-The courts
cannot entertain a motion by county trus-
tee for Judgment against the State for his
fees for selling land for taxes, the statute
forbidding suits against the State. The
State VS.. Park, trustee. Cooper, j.
Burden Of Proof-On Complainant,
eehen-Upon bill filed to enjoin an execu-
cution at law, upon the ground that the re
turn of the officer that he had executed the
summons on the complainant was false, the
burden of proof is upon the complainant,
and he must make out his case clearly.
Buffat VS.. Ledgerwood. Cooper, J.
abatement, PEA Of WaiUer-Procti -
l. Appearance and defence on the merits,
by defendant in chancery, after his plea
in abatement has been overruled as insult
ficient. valves the plea. If the defendant
wishes to have the opinion of the supreme
court on the sufficiency of his plea, he must
abide by it and decline to plead over. Will
son VS.. Scruggs- Cooper, j.
Landlord and tendnt-Inapr0yemen -
2. A tenant cannot claim compensation for
improvements made pending the lease, I'M
less he have contract with his landlord to
that effect Idem.
improvements alL0sea to claimant When.
3. Under Code, SS3259, 1861, which al
lows a bona tide occupant of land under color
of title, compensation for permanent inn
provements not exceeding the rents, in the
absence of an Independent equity controll-
ing legal rights, only such improvements
are allowed for rs were made before the
party had knowledge of the better title.
Idem.
| District Attorney-Fees on Conpiction.-
Since the act of 1879 chap. 80, which pro-
| yides that the district attorney shall only be
allowed the fee prescribed by the code
| $4542 for each " final conviction" the at
| torney is not entitled to the fee if after con-
viction the judgment is reversed and ao11
/ proseQui entered by the State. Keys VS..
i State. CooperJ.
District attorney. -Concictioa -
| When party, tried and convicted OF rape,
appeals to the supreme court, and pending
! the appeal breaks jail and escapes, and the
case is retired from the docket the district
attorney is only entitled to fee on a noAt
p3VSeQ2N or acquittal, the conviction not be
ing final Leach VS.. State. Cooper, j.
Observation-Disclosures. Il. On trial fol-
! lewdnegs, testimony showing acts of lewd
ness previous to trial on a former indict-
ment on which the party was acquitted, i:
admissible to show the nature and charac
| ter of subsequent conduct and association
| between the same parties. Myn0tt cs
| State. Cooper, j.
Indictment-F elony-M 5sdemeanor. The
charge in an Indictment for larceny, of felo
niously taking and carrying away certain
specified wood includes the wilful taking
and carrying away Of the same wood
which is made q misdemeanor b.
statute, and under the code S5222, the
defendant may be acquitted of the felon,
and convicted of the misdemeanor. Hal
VS.. State. Cooper, J.
Criminal LQW-F'ale P,eteace,- t,
make under our statute case of false pre-
tence, it must appear that the owner in
! tended to part with the title to the property
If he intended to part only with possession
it might be larceny, but not false pretence
i Canter VS.. State. Mcfarland J.
2. Same-Same.-Th false pretenc
must be as to an existing fact, not a mer
promise to do something in the future
Idem
PIesentneat-SMffciency GA present
ment for profane swearing, is sufficient i
it charge that the oaths We're uttered in
! ''gHbljc place" in the county, and to " tn
common nuisance The proof would hav
to show in such case that the swearing wa
done in the presence or hearing of SOM
part of the public. State VS.. Wyrick
Mcfarland, j.
! Etecut2rs B0nd-LiaJi2ity Of Suretie.-
If an executors bond executed after tn
adoption of the code. IN terms covers al
the duties imposed By tie ,cill, the suretie
WILL under 1924 of the code be liable TO
any default of the executor whether as ex
ecutOr or testamentary trustee. Walker VS.
Potillo. Mcfarland, J.
Ljectmeat-in Eqmty-Lacdes. In a,
ejectment bill, in equity laches cannot b
imputed to the complainant by any lapse 0
time short Of that which would bar an &C
ton of ejectment at law. Graham VS.
Caldwell. Cooper, j.
VIII Construction of-Where a ties
tator gives in one clause of his will
certain real and personal estat
10 Ills bOu, dIu subsequently "
a codich bequeaths the same property to
trustee for the use of the son, with the re
striotion THAT no part of the same (sait
property is to be subject to execution 0
other legal process forany debt or liability
of the son, and providing ct that he is not t.
sell said property or any part thereof bu
may use the rents and profits, and dispos'
it by the last will 1.-THE codicil is iaefectua
and Woodland the property may be reaches
by execution at law for the sons debts
Turley VS. Massengill. Freeman J.
/. Rajlroads--Lia5iyityfo for Ooerf7oac 1t i
the duty of Railroad companies, in tn
construction of their road-beds, to provid
against the known habits of such st cam
as are produced by heavy rains, and if the
fail SO to do and damage results to an ad
joining land owner by reason of overflow
occasioned by an embankment, the road
liable. Carriger VS.. E. T., Va. & Ga. R. r
Turney, J.
2. SGme-In such case it is no defens
that the plaintiff was not owner of the Ian
when the road was built Idem.