kind of measures the miller shall keep, and annexes a penalty for keeping false measures. The act of 1819, c. 23, following up the intention and meaning of the act of 1777, c. 23, exempts the keepers of grist-mills from militia duty, from serving as jurors, and working on roads.

I quote these provisions of the law to show the character of the use for which the citizen's property is taken, when a part of his land is condemned for the purpose of building a gristmill. It is emphatically a public use for which it is required, and to which it is appropriated. The grist-mill is a public mill. The miller is a public servant. He is allowed a compensation for grinding. His duties as a miller are prescribed, and penalties are imposed for a violation of any of those duties; and he is exempted, in consequence of his character of miller, and for the benefit of the public, from the performance of certain duties to which other citizens are subjected.

It will appear from what has been said that when an acre of land is taken from any citizen for the purpose of erecting a grist-mill, although the title be vested in another citizen, yet that vestiture is for a public use, and is wholly different from the case of taking property from one man, and giving it to another for his private benefit only.

The question now occurs, is this application of the character contemplated by the act of 1777, c. 23? I think it is not. The petitioners say they are desirous to build a grist-mill, saw-mill, and paper-mill. For the erection of these works they ask leave. For these purposes they ask to have Harding's land vested in them. The saw-mill and paper-mill have no public character; the erection of these mills would be wholly for the private use of these petitioners. To take Harding's land for such use, would be unconstitutional. The act of 1777, c. 23, contemplates no such violation of the rights of one man for the private benefit of another. Had the application been confined to the saw-mill and paper-mill, no one could for a moment hesitate in rejecting it. Does the introduction of the grist mill, thereby asking the land for these complicated purposes, alter the case? In my opinion, the application is entitled to no more favor than if nothing were said about the grist-mill. If an application of this sort were granted, a like application for the erection of iron works, or any other establishment requiring water power, might be made, and would be entitled to equal favor, provided the applicant, as a pretext, were to associate a grist-mill with his other works. Thus the grist-mill, the only

thing mentioned in the act of assembly as having any claim to be of a public character, would be made the subterfuge for vesting in one citizen the land of another, and of giving to the whole establishment, of which it would be but an inconsiderable appendage, the high appellation of a public mill. This would be mocking the citizen who would thus be despoiled of his land to enrich another. It would be holding out the idea that his land was taken for public use, and that the public exigencies required it; when in fact this was only used as a pretext for obtaining the land for private emolument. I conclude, therefore, that this application is not authorized by the act of assembly, and that the county court had no power to grant it. The license from Hurt has nothing to do with this proceeding. If the petitioners have any rights in virtue of that agreement, they must seek a remedy, either by bill or in an action for damages. It can not be noticed in this way. This is a special proceeding under the act of assembly, and must be determined upon that act alone.

Petition dismissed.

Cited in Clack v. White, 2 Swans. 549; Memphis Freight Co. v. Mayor, etc., 4 Coldw. 428; and Reynolds v. Baker, 6 Id. 229, upon the point that the legislature has no power to transfer the private property of one man to another, against his will, and that any attempt so to do is invalid. In Butterworth v. Brown's Heirs, 7 Yerg. 471, to the effect that legislative acts that deprive a person of his property in a summary way, should be strictly construed.

EMINENT DOMAIN.-See the notes to Beekman v. S. & S. R. R. Co., 22 Am. Dec. 679, and Cooper v. Williams, Id. 756, for a discussion of this subject.

KEARNEY V. SMITH.

[3 YERGER, 127.]

EQUITY WILL NOT AID A PARTY after a trial at law, unless he can impeach the justice of the verdict on grounds of which he could not have availed himself at law, or of which he was prevented from availing himself by fraud or accident, or the act of the opposite party, without negligence or fault on his part.

BILL filed by Kearney and Moore against Smith and Jackson, charging that, in 1818, John I. Moore recovered, in Virginia, a judgment against Benjamin Jackson for one hundred and twenty dollars; that the judgment, although in the name of John I., was for the benefit of William H. Moore, who brought a copy of it to Alabama, and finding Jackson there, sued him

on such judgment, and obtained a second judgment against him. That Jackson brought from Virginia to Alabama two negroes, and sold them to his co-defendant Smith, with the view of defrauding his creditors, particularly complainants. That complainant Moore, disregarding such sale, sold one of the slaves, under execution issued on his judgment obtained in Alabama, and his co-complainant Kearney purchased him for his (Moore's) benefit, under an agreement by the latter that he would save Kearney harmless from any liability from such purchase. That thereupon Smith brought an action of detinue against Kearney in Alabama. That under advice of counsel, Kearney interposed a plea of misnomer in abatement to said action, which was overruled, and a plea to the merits and a trial instanter ordered by the court, and the trial proceeded in the absence of complainants and their best lawyer, and also their witnesses. That if their witnesses had been present, they were not certain that they could have proved the fraud alleged, without the answer of defendant Smith. That the consequence was, that a verdict and judgment were entered against Kearney for four hundred dollars. That a copy of such judgment had been brought to Giles county, in this state, where Kearney lived, and a judgment obtained there against him. Complainants prayed for an injunction and general relief.

Defendants admitted the judgment obtained by John I. Moore, but denied that it was for the benefit of William H. They also admitted the judgment obtained in Alabama against Jackson on the first judgment. They admitted the sale of the slave prior to the time of the last judgment, but denied all fraud whatever in the sale, or that it was made with a view to defraud creditors; on the contrary, they alleged that a fair price was paid for the slave, and the money paid to Jackson's creditors. They also insisted that the judgment at law was conclusive of the right to the said slave.

Craighead, for the defendants.

Brumlett, contra, insisted that complainants ought to be relieved from the judgment against Kearney, because of the surprise at the trial in striking out his plea of misnomer, and by the absence of the counsel on account of sickness, which were circumstances that could not have been guarded against, and by which they had been prevented from having a fair trial on the merits: Click v. Gillespie, 4 Hayw. 8; Rogers v. Waller, Id. 209; Armstrong v. Thompson, 3 Id. 127, 128; Winchester v. Jack

son, Id. 316; Id. 305. This is a case of fraud, and courts of equity always grant relief in such cases. That the surprise occasioned by the striking out of the plea, the absence of counsel, etc., were sufficient for this court to interfere, and allow a trial upon the merits: 2 Tenn. 266; Stothart v. Bennet, Cooke, 420; Appleton v. Harwell, Id. 242.

By Court, GREEN, J. The circuit judge dismissed this bill because there had been a trial at law, in a court having ample jurisdiction to determine the whole merits of the case. We are of opinion that the decision of the circuit judge was right.

A party will not be aided by a court of chancery, after a trial at law, unless he can impeach the justice of the verdict, on grounds of which he could not have availed himself at law, or was prevented from doing it by fraud or accident, or the act of the opposite party, unmixed with negligence or fault on his part: 1 Vern. 238; 1 Sch. & Lef. 201; 7 Cranch, 336; Smith v. McVer, 7 Wheat.; 3 Desau. 324, 325; 4 Munf. 115; 3 Johns. Ch. 356; 1 Id. 323; 4 Id. 566.

Chancellor Kent, in the case of Duncan v. Lyon, 3 Johns. Ch. 357 18 Am. Dec. 513], well remarks, that "if the principle was to be materially relaxed, the departure from it would soon be perceived, and felt to be a great public grievance, by encouraging negligence, protracting litigation, exhausting parties, and drawing within the cognizance of this court the general review of trials at law."

The complainant, to give this court jurisdiction, states in his bill, that his plea in abatement was unexpectedly stricken out, and a plea to the merits required instanter, which being filed, the cause was put to the jury in the absence of all his witnesses, by whom he could have proved the fraud; and that the counsel on whom he principally relied, was absent and sick. This would not bring his case within either of the exceptions before stated, even if the facts were true. But the proof does not support this allegation. There was no proof that the attorney was absent, or that his witnesses were not sworn and examined in that trial.

It is unnecessary, after what has been said, to consider the question of fraud. The evidence upon this point is contradictory and very unsatisfactory. A suspicion that all was not exactly fair, may exist; but the proof is too inconclusive to have authorized a decree, had the question of jurisdiction been out of the way. Decree affirmed.

1. Smith v. McIver, 9 Wheat. 532.

Cited upon the following points: That a court of chancery will not aid a party after a trial at law, except upon grounds that he could not have availed himself of on the trial at law, in King v. Vaughn, 8 Yerg. 61; Stone v. Moody, 6 Id. 36; Rice v. R. R. Bank, 7 Humph. 42; Schwab v. Mount, 4 Coldw. 62; Chester v. Apperson, 4 Heisk. 642; Lindsley v. Thompson, 1 Tenn. Ch. 273. In Lewis v. Brooks, 6 Yerg. 184, that a party who is prevented by accident from making a defense to an action at law, without fault or negli. gence on his part, will be granted relief in a court of equity. To the same effect in Seay v. Hughes, 5 Sneed, 157. In Ridgeway v. Bank of Tennessee, 11 Humph. 525; Rowland v. Jones, 2 Heisk. 323; and Hickerson v. Raignel, Id. 333, that before a party will be aided in equity after a trial at law, he must impeach the justice of the verdict, on grounds of which he could not have availed himself at law, or he must show that he was prevented from taking advantage of those grounds, by fraud or accident, or the act of the opposite party, without negligence or fraud on his part.

In Oliver v. Pray, 19 Am. Dec. 595, and the note thereto, 603, the power of courts of equity to relieve against a judgment at law, is treated of at length.

VANCE'S HEIRS v. MCNAIRY.

[3 YERGER, 171.]

DEED AS BETWEEN THE PARTIES is valid without registration, and vests an inchoate title in the grantee, which is subject to levy and sale by execu tion.

LEVY ON LAND IS SUFFICIENT, if it so describes the land as to distinguish it from all other tracts.

WHERE A DEED FROM THE SHERIFF constituting the purchaser's title, follows the sale, the same particularity of description is not necessary, as would be required were the title to rest upon the levy.

PURCHASER OF LAND HELD BY AN UNREGISTERED DEED at execution sale, is clothed by the sheriff's deed with all the rights of the judgment debtor, and it is the duty of the latter to deliver him the title papers, or have the deed recorded; and if he suppress the deed, it will be considered in equity as recorded; and, if he combine with a third person to defraud the purchaser, the latter may come into equity for relief, and such person may be divested of the title acquired by the fraudulent arrange

ment.

BILL of review for errors apparent upon the face of the decree rendered in the case of N. A. McNairy against Samuel Vance, Morgan Brown, and William Armstrong, on the sixteenth day of September, 1818, by the supreme court of errors and appeals, at that time possessing original jurisdiction. The decree set forth that Morgan Brown, in 1803, bought the land in dispute of William Armstrong, for a large sum of money, paid by Brown, and that on November 1, 1803, Armstrong executed a deed to Brown on the back of the patent for the land, attested by two witnesses, by which he granted to Brown the