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

allowable, and any ordinary indiscretlon OF
counsel in the feryor of forensic contro-
versy Is not to be assigned as error here, but
the deliberate statement of a fact or mar
ration of facts by counsel, the effect of
which upon the fortunes of his adversary is
potent and inevitable, rests upon very diff
ferent principle To permit outside infiu-
ence or unproven facts to be thrown into
the balance in determining the rights of
parties, is ''but the mockery and counter
felt of Justice ''The public interest re-
quires,p said G. J. Parsons, shat htigating
parties should have nothing to complain of
or suspect in the admistration OF jkstice,
and the convenience of jurors Is Of small
consideration, compared with the great OBJ
ject. It is better that everybody should
suffer Inconvenience than that a practice
should be continued which is capable of
abuse, or at least of being the ground of
uneasiness and jealousy" The learned
Judge was referring to case in which the
Judge at mis-; prius had, after the retirement
of the jury, sent them a supplemental
charge in writing, in which he deprecated
their failing to agree and gave them such
additional instructions as to the law as
would enable them 10 consider the cause in
IA; 2 Pick, 337,
1t was among the oracular utterances of
Lord Coke thai if the plaintiff, after eyi-
dence given, and the jury have departed
from the bar, or any for him, do deliver any
letter from the plaintiff to any Of the jury
concerning the matter in issue, or any evil
dence, or any escrow touching the matter
in issue, which was not given in evidence,
!: m. Al. -
the plaintiff, but not il it be found for the
defendant; ct SIC e cORUeTSi.-1 Co. Lit.
227. "We take this plain position" said
the Supreme Court of North Carolina: 'If
the circumstances are such as merely to put
suspicion on the verdict by showing not that
there was, but that there might have been
undue influence brought to bear upon the
the jury, because there was opportunity and
chance for it, it is a matter within the dis
cretion of the presiding Judge. But if the
fact be that undue influence was brought
to bear in the jury, in all such cases there
has been in contemplation of law no trial
and this court, as a matter of law, will di-
rect trial to be had" IL Ired. 5l3. "And
among the undue and improper influence to
demand a uenire de more the court men
tions the taking and hearing of other evil
dence not given by the witnesses at the
trial."
These are cardinal principles which as
sumo different shapes as they are uttered by
different courts, but they are everywhere
to be found in the textbooks of the COM
mon law, and it is upon this that due and
proper enforcement the inviolability of the
right of trial by jury reposes. Let us apply
them to the facts of this case. 1t viii be
observed that Joseph A. Mabry was the
author of the libeliOus publication on which
this action is brought. He it was who had
sold to these defendants the press in which
the publication was made. 1t was at his
special request that the defendant, Isaac S.
Clark, consented to publish the article, and
upon his representation that it was judi
cial proceeding. The theory of the prose-
cution was that defendant Clark had been
imbued by Mabry with all the special mali ce
and ill-will of the latter against the plaintiff
and actuated by the malevolence of the old
feud, they had conspired together to de-
fame and destroy the good name of the
plaintiff. 1t was legitimate, as matter OF
law, for the plaintiff to have shown this
special malice on the part of the defendant
by any facts indicating a communi-
ty of purpose between Mabry
and himself, or that they sym
pathized with each other in a common
hatred of an enemy common to both, Ell
ther prior TO or at the time of the publica-
ton. The strategy and rigor of the prose-
cution would, therefore, be addressed to the
task of convincing the jury that defendant
Clark was thoroughly impregnated with the
malice and virus that Mabry felt against
Baxter. If this could be done by fair COM
ment upon the history of the feud as EN-
bodied in the Chronicle letter, made evil
dence by the defendants, it was lawful and
legitimate to do so. But there was abso-
lutely no testimony before the jury that any
attempt had ever been made by Mabry to
assassinate the plaintiff. And the "history
and account of such transaction by the
plaintiff was outside Of the record, and it
was improper and irregular in the court to
permit it. We can easily conceive, under
the circumstances of this case, how the
passions of jury could be lashed into fury
by the fiery eloquence of a plaintiff, who,
as his own advocate, was permitted to bring
up in judgment against these defendants
the alleged wrongs of one who, for aught
that appears in the evidence to the contra
~, was as much stranger to the defend
ants at the time of those wrongs as the at
tempted assassination is stranger to this
record.
We are of opinion that the ruling of the
Court, in permitting such latitude to the
plaintiff in the argument of this cause, was
irregular and reprehensible. We are not
prepared, however, to reverse the judgment
on this account, especially in the absence
of a demandfrom the defendants for specific
instructions as to the effect of the plaintiffs
statement. Larkins VS.. Sartin, Sneed, $50.
But we prefer to reserve the question.
III. 1t is urged with great earnestnesS on
behalf of the defendants that there was err
ror in the judgment of the court below in
disallowing the dismission. We do not
think so. 1t is true that Bona .tide re-
port Of the proceedings in a court of justice
in the absence of express malice, is not a
libel, though the publication may be iniuri-
GUS to the character of an individual Bar.
Alb. $40. Privileged communications of
this nature and those made by counsel in
the regular course of justice; but to be pro
tected they must by pertinent and material
to the matter in controversy. Gilbert VS..
The People, Denie, Al.
The publisher of libelOus works IS in the
contemplation of law pGrticepS CriniiRis
with the utterer. A want of personal ac-
quaintance with the party DETAINED is no
excuse to the publisher, nor is want of
knowledge of the publication by joint
publisher any excuse TO him. Bar. $50,
355, $50. There is nothing more abhorent
to the law than the defamation of human
character. But ''the courts, says Chancel-
lor Kent. "have found it embarrassing to
preserve in just harmony and proportion the
protection due to character and the prOtec-
ton which ought to be afforded to the lib
erty of the press" ! Kent CSC. The press
is free in this country, but not free to de-
strOy the fair fame Of the citizen. In the
case of Wright VS. Woodgate CrOmp. n &
r. 573 it is said. "a privileged commune
cation means nothing more than that the
occasion of making it rebuts the primo fdcic
inference of malice arising from the publ
cation of matter prejudicial to the character
of the plaintiff and throws upon him the onus
of proving malice in fact; but not of prov
ing it by intrinsic evidence only; he has
still a right to require that the alleged
libel itself shall be submitted to the jury
that they may judge whether there is
evidence of malice in the face of it.
10 Cant. 446. With respect to words used
in a course of judicial proceedings, it ha;
been ruled, says Lord Eldon, that they are
protected by the occasion, and cannot form
the foundation of an action without proc
of express malice. johnson VS.. Emus,
Esp. 80. And in HOdgson VS.. Scarlet it i: