Nashville union and American. [volume] (Nashville, Tenn.) 1868-1875, 1871-10-20

Important Opinion Of the Supreme

a newspaper in the city of Knoxville, called
the "Slatdag. Wig and .Registerss At
that time a litigation was pending in the
| Chancery Court at Knoxville, in which
John Baxter, the plaintiff in this action, was
the complainant, and Joseph A. Mabry and
others, gere defendants, and on the day
aforesaid, an article purporting to be speech
delivered by Joseph A. Mabry, in said Chan
| Gerry Court, appeared in the columns Of the
said Sunday W-htg and Register. The arti-
Gle contains an angry and violent defama-
ton Of the character of the plaintiff and his
family, and was introduced TO the public in
the words following:
aKnex County Chancery Court. By per-
mission of Chancellor Temple, the follow
ing is published. John Baxter VS. Jos. A.
Mabry ct al. In this case Gen. Mabry arose
and spoke as reported substantially as fol-
lows" Then follows the defamatory ar
ticle. - 30
g. On the 10th day of September next there
after the plaintiff brought this action oflibel
against the said publishers, Saunders &
Clark in the Circuit Court of Knox county.
The case was submitted to jury at the
February term, 1871, and resulted in a YER
dict and judgment in behalf of the plaintiff
for twenty-seven thousand dollars, from
which the defendants have appealed in err
ror. 1t appears in the proof that at the
time of the publication of the article in
question, the defendants, who had recently
bought the press Of the Wig and Register
| from Joseph A. Malry, were comparative
strangers in the city of Knoxville; that they
! had only resided in said city few weeks;
that the defendant Clark was a stranger to
the plaintiff, and that the defendant Saun-
| I,a,.r -
absent from the city and knew nothing of
it; that the defendant Clark caused said ar
ticle to be published as an advertisement,
without knowledge of its contents, and at
the requst Of Mabry, and believing it to be,
as he states, a part of the proceedings inthe
! ChancerY Court in the case referred to, as
Mabry had represented it TO be a speech of
his in said, cause. He was admonished,
however, by the editor, Col. Rocket, that
| the article was not proper one to be pub
lished. 1t is shown, also, that upon the ar
rival of Saunders, he asked who had pub
lished the article, expressed his indignation
and regret at the publication, stated that he
would not have had the article published
/ for thousands of dollars, and said that he
would at once call upon the plaintiff and ex-
plain the matter.
! Here follows a private letter from Saun-
ders regretting the publication and q reply
| from Baxter, saying that nothing but a
public retraction would satisfy him. Eds.
This correspondence was had on the 9Th
of Sept. 1870. 1t appears that no public
explanation was made, and on the 10th of
! September, thereafter, this action was com
menced. After the beginning of the action
and on the 18th Of JAN, 1871, the following
article appeared in the columns of the de
PENDANTS newspaper:
- tANeTHER UNFORTUNATE EDITOR"
''From. the article we copy below from
the Cincinnati Enquirer, it will be seen
another editor has put his foot in for $4,000
damages, and the fund viii now swell to
| 100000" :
The Enquirer of Monday says: A Col.
Baxter, of Tennessee, had a considerable
amount of character to dispose of and man
aged TO get himself Ebelled. He has brought
suit against the following person and per-
sons:
Nashville Banner, $4,000; UNION AND
AMERICAN, $4,000; Athens Post, $50, 900;
| Sweetwater Enterprise, $4,000; Knoxville
| Wing and Register, $4,000; Joseph A.
Mabry, $4,000. If Col. Baxter gets paid
| for the amount of his damages, he will have
| $350,000, very comfortable sum. But if
| he has any character left, he had better
keep 1t. He cannot afford to dispose of
much more even at the highest market
price" - s
This latter publication was introduced mp
on trial on behalf of the plaintiff TO indicate
the quo G7liBlo and intent of the prior publ
cation of the 4th of September, 1870; upon
! which the action was brought. The defend
! ants objected to its introduction as evidence,
but the objection was disaIowed and the ar
! ticle was submitted to the jury. The de-
| PENDANTS demurred TO the declaration which
is in the simple form prescribed by our
statues, upon the ground that the publica-
ton containing the matter alleged to be
| falsely and maliciously published by the
defendants imports on its face to be matter
! spoken in the course Of legal argument in
! the Chancery Court at Knoxville in the
case of John Baxter VS.. Jos. A. Mabry, and
! that the same was published by permission
of the Chancellor. The demurrer was over
ruled, and the defendants thereupon entered
plea of not guilty, and gave the plaintiff
| notice Of the special defence, that the matter
| complained of was a proceeding in a court
| of Justice, and that the publication thereof
! was made in the bona fde discharge of their
! duty as journalists. The testimony of the
speech was made by Mabry, is taken in this
case, and is to the effect, that Mabry did APP
pear in his Court and ask permission to re-
! ply to some remarks made on previous
| day by the plaintiff, and that holding a
manuscript in his hand, he did proceed to
make speech, but that he, the Chancellor,
perceiying the personal and offensive ten
dency of his remarks, frequently checked
| him, and finally required him to resume his
seat ,whereuponMabry observed that he could
! publish his speech, to which the Chancellor
| alphabetically, that is the proper place
to discuss personal matters. and not in this
/ Court" The Chancellor states that about
the same conversation occurred between
himself and Gen. Mabry afterwards in the
| street; that he did not suppose that what
he said on either occasion could be constTII-
| ed into permission, which he had no right
to give, either as a Judge or as citizen, that
! the speech which Mabry was prevented from
| making in Court might be published in a
newspaper. That his only purpose was to
| admonish the party that such remarks
would not be tolerated in open Court. The
Chancellor further testifies that at the time
! Gen. Mabry attempted to make said speech
there was no cause on trial, and no motion
pending, to which he proposed to address
| himself. $3.50 SD .re---.
In the progress Of the trial the defendants
counsel was proceeding to read to the jury
certain letters aud articles contributed to
the Chronicle newspaper by the plaintiff,
of highly infammatory character, charging
Joseph A. Mabry, and others, with fraud
and corruption in the management of GER
tain public moneys, and tending to illustrate
the ferocity of a long and angry feud, which
for many years had existed between said
Mabry and the plaintiff. The plaintiff OBJ
jected TO partial extracts from those articles,
and insisted upon his right 70 have the whole
submitted to the jury; whereupon it was
agreed between, the parties that the whole
| should be considered as read and the sub
ject of comment in argument. This opened
! a wide field of argument not geTTnane to
the issues involved in this cause, but which,
| so far as it related TO the matter discussed
in these several publications, was rendered
legitimate by the agreement of the parties
that all the publications should be submitted
to the jury as evidence. The discussion
which followed, involving matters and oc-
currences with which these defendants were
in no manner connected, was certainly in
appropriate to the issues, and under the
circumstances, perhaps, injurious to the de
PENDANTS. But so far as the contents OF the