The Nashville daily union. [volume] (Nashville, Tenn.) 1862-1866, 1864-10-07
FRIDAY. OCTOBER :, 1864

FRIDAY, OCTOBER Z, 1864
In yesterdays Dispatch, under the
head Of An Important Case, appear
ed an extremely Incorrect account OF
what occurred on Wednesday after
noon in the Circuit Court, upon the
trial Of the cause of Driver vs. McClay,
Judge N N. Brien, presiding The
version alluded to, which viii be found
elsewhere, not only transeends the
written statement Of facts agreed upon
BY the parties in the cause and laid
before the court, but further, it repre-
sents Judge Brien as having fined the
plaintiffs counsel, for simply praying
an appeal to the Supreme Court Yes
terday morning, before entering upon
the business OF the day, Judge Brien,
read the above account in the Dispatch
TO the bar, after correcting its misrep
reservations, he expressed a desire that
an accurate recital of what occurred,
should be laid before the public.
Hence the following brief narrative,
drawn up by member Of the bar who
was present throughout the whole time.
It is proper, however, here to state
that the author OF the article in the
Dispatch, an unprofessional volunteer
reporter, was guilty Of no intentional
wrong, but erred simply from want of
close attention to a matter wherein he
was not at all interested The follow
ing is a certified copy Of the agreed
facts in the above cause, taken from
:, the original on Gle in the Clerks Office:
aThis suit is brought up for the hire
Of a slave, belonging TO the plaintiff
Said slave left his Master, engaged in
the service of defendant, on condition
of receiving his own wages. Plain
tiff notified defendant not to pay
the negro his wages, as he claimed them
AZ hire for his slave. Defendant paid
no attention to this notice, and paid
the negro. Whersupon, plaintiff sued
defendant, and recovered an amount
equal TO the fair value of the negro s
services"
"a true copy--es the same remains
on file In my Office, October g, 1864
DAVID G. LOVE,
Clerk C. Court, Davidson Co, Tenn.
ON this statement Judge BEien
charged the jury, in the clearest and
most emphatic manner, that the plain
tiff could not recover, explaining the
policy of the Government as applicable
to such case as that before him. But
the jury, after retiring a few minutes,
returned, and, right in the teeth Of the
Judges charge, rendered a verdict in
the plaintiffs favor Judge Brien,
thereupon, sci aside the verdict, ar
being contrary TO the charge of the
Court, and awarded a new trial, and
then, justly incensed with the unprece-
denied conduct OF the jury, he admin
istered 10 them a severe rebuke, re-
GREETING that he could not fine them
for the contempt they had exhibited
towards the Court, and finally dis
charged them from further attendance
on the Court as regular Jurors. The
plaintiffs counsel now arose, and re-
marked in an expostuiaiory manner,
that the jury were the judges of the
facts and of the lava position true in
criminal cases, but entirely incorrect in
; civil cases, wherein 1t is the province of
the Jury to receive the law as declared
by the Court implicitly and to apply it
to the facts with fidelity. This no law
yer in his cooler moments would pre-
tend to dispute
The plaintiffs counsels manner,
moreover, was not altogether respectful
1t was for these reasons that Judge
Brien fined him; namely for assuming
10 Justify the outrageous conduct of tn e
jury on ground which the Judge
knew he must consider as entirely in
defensible, and this right in the face
of his Honors emphatic rebrke, and
also for what was Objectionable in his
manner. The counsel then asked for
an appeal 10 the Supreme Court from
the order setting aside the verdict of
the jury Judge Brien refused this,
since, il beinga matter entirely in the
Judges discretion to grant new trial
whenever he may consider that that
already had has not resulted in the
attainment of Justice, his decision
awarding such new trial IS not suscep-
tible Of being appealed from Tie
counsel then asked that his prayer for
an appeal might appear on the record,
which, Of course, the Judge granted.
There can be 10 question that Judge
Brien's conduct on the above occasion
was everything it should have been,
except that, in the writer's opinion, he
should have strained point and fined
every member of that presumptuous
jury fifty dollars, and that he should
have fined the plaintiffs counsel as
well for his preposterous prayer for an
appeal from judicial discretion, as for
his impertinent attempt 10 Justify the
Jury on what he must have known were
indefensible grounds
1900
A fine and large assortment Of new
Prints at Cameron, Grier a Co.'S