Nashville union and American. [volume] (Nashville, Tenn.) 1868-1875, 1871-03-01
SUPREME COURT DECISIONS.
December Term - Nashville,
1870. 'oA go -. -.

ktcccu1U0E AOEAu - 0tbSASDtC,
TR1O sOn ysE1al I1as
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Joseph B. HeiskeII, Attorney.Gen.
eral and Reporter. - :
No. 40.
| William Hackett, plaintiff in error, vs.. Pheroba
]. Brown, by her next friend. n
OPINION.
The defendant in error, being minor,
brought this action under the Code SO, 400,
which declares that stany words written,
spoken or printed of a person, wrong
fully and maliciously imputing to such
person the commission of adultery or for
| nication, are sctionable, without special
damage, which words were not action
able at common law, and redress against
such SANDER could be obtained in England
through the spiritual courts only; but
they have been actionable here since the
act of 1904, chap. /, SCOTS Rev. 852.
The declaration is for verbal Islander.
Issue was taken upon the plea of not
guilty, and after one mistrial, verdict and
Judgment was rendered in favor of the
plaintiff below for one thousand dollars
and costs, from which plaintiff in error
appealed.
On the trial, in the court below, two
witnesses testified to the speaking by
plaintiff in error of part of the words
laid in the declaration and clearly i'm
putting fornication. These witnesses
We're assailed in the progress of the cause
by their own admissions that they were
unfrieudly to plaintiff in error, and
were further attacked, partly by proof as
to contradictory statements and in part
by evidence discreditiHg them from their
general reputation; but larger number
of sustaining witnesses swore that from
their knowledge of their general charsc
tiers they were entitled to credit upon
oath. Some Of the witnesses thus testi-
flying were in turn assailed; but as the
credibility of all the witnesses was Pc
cuhsrly and appropriately question for
the jury, it is not necessary, under long
and well established rule of this court, to
enter upon critical and extended exam
nation of their respective claims to
credit.
The general character of the defendant
in error as to chastity was also assaulted
upon the trial; and it was shown by the
evidence of ten witnesses, varying much
in their degrees: of knowledge, that her gen.
eral reputation before the commencement
of the suit was that of an unchaste wo-
man, while upon the other hand five wit
nesses testified as to her good character
in that resp-c; and it may be inferred
from the entire proof that she was quite
md hoH al liohad
eral character of any sort
1t is impossible, however, after care
full examination of the eutire evidence set
out in the record, to avoid the conviction
that the verdict was rendered in favor of
plaintiff of doubtful character upon the
evidence of witness of doubtful credit.
While this conviction does not, of itself,
afford sufficient ground upon which to
reverse the judgment, it imposes more
imperative duty to scrutinizu the incidents
attending the trial and to consider the
errors in law which are alleged to have
occurred during its progress.
1t seems, from the evidence, that one
of the sons of plaintiff in error was, in
the language of the witnesses engaged in
occurring" the defendant in error; that
her chief witness was the Mercury OF 60
between; that her sutton had sent her "a
white handkerchief with four grains of
spice in it, " and that she had sent him q
letter containing ga hickory toothbrush
and three grains of spice" What enig-
NAUTICAL meaning was attached to these
symbolic missives; or whether they were
to be regarded as slgnifying love or hatred;
or as dimly forshadowing the action of
SANDER, does not appear from the record;
but it does clearly appear that the sons
cUurtship was carried on without the
knowledge of his father or mother; that
his mother, on discovering the letter,
threw it into the fire and burned
it, and that his father was 80 ex-
asperated that che whipped him very
severely, with q switch, and cut the
blood out of him, ABOUT the letter." 1t
may be inferred, though it is not clearly
proved, that soon after the discovery
made by the parents, the principal wit
ness, who had acted as the mutual friend
| of 'the young people" visited the plain
tiff in error at his house, and, on the
way from it to his still house, plaintiff in
| error told the witness that che had q
crow to pick with him, because he I'M
| derstOod witness had been counting be-
| tween his son Thomss and the plaintiff"
The witness denied it. The plaintiff in
error then swore that the defendant in
error was very mean woman aud charg-
ed that he had caught her in the act of
fornication with person named, who sf-
forwards swore, upon the trial, that no
such occurrence took place.
The slanderous words were proven by
| two brothers testifying TO the same con-
versation, and do not seem to have been
uttered on any other occasion. 1t seems
that one of the sons of plaintiff in error
was, during the interview or alteration,
called in to prove the agency in the court
ship of the principal witness, who be-
came Infatuated, drew his knife and
made strong threats. There is
also evidence tending to show that
both witnesses for defendant in
error, were into xicatei, or under the in
tiuence of liquor, at the time of the al
legged conversation. One of the sons of
| plaintiff in error testiies that he heard
all the conversation; that no charge of
fOrnication was made; bat that his father
did say, with an cath, that she was q
poor man and before his son should mar
ry into such family he would kill him
and bury him on credit" and this latter
statement is, substantially, corroborated
by two other witnesses
Without analysing the other evidence,
as to the contradictory statements alleged
to have been made by the principal wit.
ness as to what occurred at the time OF
the utterance Of the alleged slanderous
words, it is obvious, from the facts ap
pearing in the record that his Honor's
charge to the jury was not sufficiently
full and explicit as to the rules by which
they were TO be governed in weighing the
credibility of the witnesses, and that, al
| given, the charge was calculated to mis-,
lead. After stating, very briefly, that 6
witness msy be discredited by the evid
ence of witnesses who would MOI
believe him on oath from theil
knowledge of his general character
or sustained, in like manner, by
witnesses who would believe him; that
he may be impeached, by proving that he
made Certain material statements" which
| he denies. or that GGhis sWearinp in refer.