Year: 1871

OF or allusion to an attempt by Mabry to assas-


sinate the plaintiff. If it be true then. as this


record discloses, that the plaintiff, as his own
| advocate. occupied some time in giving an


account and history of an attempt by the
| author of this defamatory article to assassinate
! him, it is manifest that these defendants have
| been required to bear other burdens than their


own in this case. The solemn statement, by q
| counsel of influence and character, of an un-


proven fact is just as pregnant of results in af-


fecting the minds of the jury as if the fact were
uttered by sworn witness, in many cases in


finitely more So 1t is the duty of the nist prius
! judge to control the argument of causes before
| a jury so far as to direct and keep them in the


line indicated by the case developed in the proof
| Any immaterial divergence to give strength or
| ornament or illustration to argument is le-


gitimate and allowable and any ordinary indis-
| cretion of counsel in the fervor of forensic


controversy is not to be assigned as error here


but the deliberate statement of fact or q mar


ration of facts by counsel, the effect of which
! upon the fortunes of his adversary is potent


and inevitable, rests upon very different prin-
| ciple. To permit outside influence or unproven
| facts to be thrown into the balance in determin-


ing the rights of parties, is "but the mockery


and counterfeit of justice" 1.-The public inter-
| est requires" said O. ]. Parsons, THAT ltigat-


ing parties should have nothing to complain OF


or suspect in the administration of justice, and
| the convenience of Jurors is of small cOnsidera-
/ ton, compared with the great object 1t is


better that everybody should suffer inconve-
| nience than that 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 ms; priWs had, after the retire


ment of the jury, sent them supplemental
chargein writing, in which he deprecated their
failing to agree and gave them such additional
Instructions as to the law as would enable them
to consider the cause in q more systematic man


ner.-1 G. s. w, IA; 2 Pick, 337.


1t was among the oracular utteranceS of Lord
Coke that if the plaintiff, after evidence 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 is
sue, or any evidence, or any escrowl touching


the matter in ISSUE which was not given in evil


dence, it shall avoid the verdict, if it be found
for the plaintiff, but not fit be found for the
defendant; ct sic G conUerSt.-l Go. Lift. 227.


"Wetake this plain position" said the Supreme


Court of North Carolina IF the circumstance


are such as merely to put suspicion on the ver-
dict by showing not that there was, but that,
there might have been undue influence brought
to bear upon the jury, because there was oppor-
tunity and chance for it, it is matter within


the discretion of the presiding Judge. But if


the fact be that undue influence was brought to


bear in the jury, in all such there has been
in contemplation oflaw no tral-and this court
as matter of law, will direct trial to be
had" II Ired. 513 And among the undue and


improper influence to demand Uenire de more


the court mentions the taking and hearing of


other evidence not given by the witnesses at the
trial"


There are cardinal principles which assume
different shapes as they are uttered by different
courts, but they are everywhere to be found in
the textbooks of the common law and it is


upon this due and proper enforcement the in
viOlability of the right Of trial by jury repoSes


Let us apply them to the facts of this case 1t
will be observed that Joseph A. Mabry was the
author of the libellous publication on which this
action is brought. He it was who had sold to
these defendants the press in which the publi-


cation was made. 1t was at his special request


that the defendants, Isaac S. Clark consented


to publish the article, and upon his representa-


ton that it was a judicial proceeding. The


theory of the prosecution was that defenda


Clark had been imbued by Mabry with all the


special malice and ill-will of the latter


against the plaintiff, and actuated by


conspired together to defame 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 community of purpose


between Mabry and himself, or that they sym


pathized with each other in q common hatred of
an enemy common to both, either prior to or at


the time of the publication. The strategy and


rigor of the prosecution would, therefore, be
addressed to the task of convincing the Jury


that defendant Clark was thoroughly impreg-
| mated with the malice and virus that Mabry felt
against Baxter. If this could be done by fair


comment upon the history of the feud as en-
bodied in the CHRONICLE letter, made evidence
by the defendants, it was lawful and legitimate
to do so. But there was absolutely no tes-
timony before the jury that any attempt had
ever been made by NIabry 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 con-
ceive, under the circumstances of this case, how


the passions of jury could be lashed into fury
by the fiery eloquence of 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 contrary, was as much q


stranger to the defendants at the time of those


wrongs as the attempted assassination is astran-
ger 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, especial
lin the absence from the defendants for specific
instructions as to the effect of the plaintiff
statement Larkins vs. Sartin, Sneed 686.
| But we prefer to reverse the question.


| II. It is urged withgreat earnestness on behalf
| of the defendants that there was error in the
| judgment of the court below in disallowing the
-dismission We do not think so. 1t is time


that Bona fde report Of the proceedings in
court of justice in the absence ofexpress malice,


is not libel, though the publication may be inju-
| rl0uS 10 the character or an lndlVldual bar.
| Alb. 349. Privileged communications of this


nature and those made by counsel in the regu-


lar course of justice t; but to be protected they


must be pertinent and material to the matter in


controversy. Gilbert VS. The People, Denie,
Al e = Na - ~ ab @


The publisher of libellous works in the con-
| temptation of law participS crinIiniS with the


utterer. A want of personal acquaintance with
the party DETAINED is no excuse to the publisher


nor is want of knowledge of the publication by


ajoint publisher any excuse to him. Bar.


380-355-356. There is nothing more abhorent to
| the law than the defamation of human charac-
ter. But "the courts, says Chancellor Kent,
'have found it embarrassing to preserve in just


harmony and proportion the protection due to
character and the protection which ought to be


afforded to the liberty of the press" 1 Kent
636 The press is free il this country, but not
free to destroy the fair fame of the citizen. In


the case of Wright VS.. Woodgate Cromp NJ


6 r. 573 it is said. "a privileged communica-