Nashville union and American. [volume] (Nashville, Tenn.) 1868-1875, 1870-03-08

exercise of their judgment. The instruc-
ton given overlooked the line which sep
arates two separate spheres of duty
Though correlatiye, they are distinct, and
it is important to the right administration Of
| justice that they should be kept so. 1t is
as much within the province of the jury
to decide questions of fact as Of the court
TO decide questions of law. The Jury
should cake the law as laid down by the
court and give it full effect. But its ap-
| plication to the facts-and the facts
themselves is for them to determine.
These are the checks and balances which
| give TO the trial by jury its value. Expe-
renee has approved their Importance.
They are Indispensable to the proper eff
cacy of the system. Such is the law.
We think the exception to this instruction
was well taken. (Aylwin VS.. Timer, u
Mass, %; N. Y. Fire In. Co. vs. Wal
den, II J. r., SIS; Utica In. Co VS..
Badger, 8 Wend. l02; Tufts VS.. Sea-
bury, II Pick, 40; Morton VS.. Fair
banks, ibid, S6S; Fisher VS.. Duncan, /
Hen. & NUM-, 562; Schuchardt VS..
Aliens, Wall, 359.)
2. The other instruction to be cOnsid-
cred was, substantially, that if the plain
I'LL had himself been traitor he couldnot
recover against those who had been instru-
mental in his arrest, imprisonment, and
trial for treason against the Confederacy
the treason alleged to consist in the aid
which he had given to the troops of the
United States while engaged in suppress
ing the rebellion. As matter of law, we
do not see any connection between the
two clements of this proposition. Giving
aid to the troops of the United States, by
whomsoever given, and whatever the cir |
cumstances, was a lawful and meritorious |
act. If the plaintiff had before cooper
ated with the Rebels there was locus |
peniteutioe which, whenever he chose to
do so, he had right to occupy. His past
or subsequent completely with those en-
gagged in the rebellion might affect his /
character, but could not take away his /
legal rights.
1t certainly could not, as a matter of
law, give impunity to those by whose in
strumentality he was seized, imprisoned,
and tried upon capital charge for serv-
ing his country. Such a justification
would be strange anomaly. Evidence
of reasonable acts on his part against the
United States was alien to the issue before
the jury. To admit it was to put the
plaintiff on trial as well as the defend
ants.
The proofs upon thequestion thus raised
might be more vOluminOus than those upon
the issue made by the pleadings. The
trial might be indefinitely prolonged. The
minds Of the jury could hardly fail to be
and confused as to the real char
acter of the case and the duty they were
called upon to discharge. The guilt of
the plaintiff, if established, could in no
wise affect the legal liability of the de-
PENDANTS; nor could the fact be received
in mitigation of damages. 1t is well set
tied that proof of the bad character Of the
plaintiff is inadmissible for any purpose in
actions for malicious prosecutiOn.-Q |
Greenl. Ey., Boy All the evidence up
on this subject disclosed in the bill Of ex-
ceptiOns was incompetent, and should have
been excluded from going to the jury.
This instruction also was erroneous. |
The judgment is reversed, and the cause
will be remanded to the court below, with
an order to issue a UenirC dc moro.