The New York herald. [volume] (New York [N.Y.]) 1840-1920, 1852-11-02

ACTION FOR MALICIOUS NEUTRALITY-SUSPICIOUS.

ACTION FOR MALICIOUS Observation-Disclosures,
$1,000.
Der. 3o-Luc,us e. Buikeley vs. Charles cambridge
Smith asd james H. BruM-Tbe particulars Of this
ha been s:d and % BE-
the action discharged from the complaint by order
Of the court Mr.. II. Cutting having summed up on
Friday for the DEFENDANTS and MIR James T. Brady for
The Chief Justice this morning proceeded to charge
the jury. He said The plaintiff in this case Is
lawyer. and the defendants also lawyers. The
plaintiff complains that they acted In concert, and
instituted criminal prosecution against him, In con
sequence of which he had been subjected to arrest
and public trial and exposed TO great nfamy and dis
grace, without reasonable to justify 1t. If that
be So 1t is undoubtedly very nigh offence AGAINST
the law, especially considering the position of the
defendants In order to determine this matter 1t Is
important for you to understand that 1t Is not
for You to determine the guilt innocence OF Mr.
Buikeey 1t often happens that honest and careful
prefers a criminal accusation believing it to be on
just grounds, and 1t afterwards there
ground, ana the man Is acquitted: but II does not follow
that a party acting responsible The law therefore
authorizes a criminal prosecution upon reasonable
ground and the party acted with good faith
and probable cause and this must be proved TO jury
by state OF facts II is not necessary in of this
kind to prove actual malice. The law implies malice IL
the be such that reasonable and probable does
not exist. You may imply malice for the want of pro
bable caufs; but you never can imply want of pro
bable from malice Therefore ii party act from
malicious motives still II there probable TO
institute the prosecutions that malice does not make him
responsible In the present therefore the inroduc
ton ofevdence OF malice by the plaintiff the part OF
Dir Smith and MIR. Bfush has other effect than that
Of enhancing the damages, in the plaintiff should
His Homer then proceeded to recapitulse at
length the evidence on the trial and contnuedThe case
turns upon the point whether Mr.. Buckley swore
on the trial, in the Common Pleas, that he had no
interest In that trial and, from the state of the
evidence 1t is difficult matter to Determine this fact
But according to the view take OF the law that Ia not
the sole point upon which the case is TO be
because. although Ii you should to the conclusion
that Mr. Buckley did that he had interest there
are legal infer resulting from III but if should
come the conclusion that he did not then
you will exsmtne another point Whether under all the
circumstances of the these defendants smith aud
had 10 hat Ia "A
swear and whether they acted with honesty and good
faith in instituting the prosecutions ana in determining
this part OF the subject, II il important you should
dersisnd the meaning which attached to the word
interest And as to this you must consider the trans
ley and the notices for payment Of the damages aud
costs which MIR. Buikeley served upon the defcn
dants II Mr. Bulkeley has involved himself in dif
fculty in this case it arises from his csmHunca.
tions to the defendants, with the view to prevent
a settlement between his client and the defendants
Of that action, while he had lien for his costs.
IT, upon the whole case, you find that Mr. Buckley did
swear that he not interested If you pnd that he
did not swear, then you will consider whether the de
PENDANTS had reasonable ground suppose that he did
he lad interest and acted in good faith and in
pursuance of that belief Mr.. Buckley acquitted
the trial as in my judgment he must have been II
be graz that NJ Buckley did tho trial that
he not interested doubt very much whether it
the kind Of oath upon which be ought TO have been In
dcted Witnesses not ordinarily examined In that
to their interest Surprising he had irrevocabe
of attorney, assignment and he was asked
he had any nerest in the result Of the and said
1t might be simply mistake of Judgment the part Of
not to inquire into the guilt Innocence OF Mr.
Buckley but whether the parties acted either In good
or In bad faith this occasion. before the pc Ice
magistrate You will consider whether Mr. Brush
n principal prosecutor in these proceedings Mr..
Brushs counsel insists that there Is not sufficient evil
dence 10 charge him acting prosecutor in the
That is point you to determine the evidence.
The law the sub OF is that when parties concert in
action together for aiding and assisting each other in
pfo cutting they both responsible prosecutors Now
taking the testimony of Mr. SANFORD think there IL
question that Mr.. Brush acting in aiding and
coDcerting with Mr. Smith in this affair; he in
pany with Mr.. Smith before the police magistrate, in
making the affidavit and in that he appeared to be
acting in concert with him On the other hand accord
ing to Mr. Smiths statement he did nothing except
the whole OF the stimony before you If you 10
the conclusion that you net Satisfied that Mr. Brush
did act in concert with Mr. Smith then you will
quit him that ground solely II you consider he
acting then he stands on the footing Mr. Smith,
and his acquitted will depend upon the considerations of
law connected with MIR Smith. Now, gentlemen IL
is competent fer to End both the defendants guilty,
and to the damages against them aud discharge
one and find the other guilty aud assess the dam
BRanst him; and at liberty, also to assess
rate damages against eher-the law uhorizng different
degrees Of punishment Respecting the damages you
not to regard what said done the focmer
tiisthat Is entirely out Of the what the
opinion of the District Attorney the Grand jury any
and You to dis pose the matters Of fact laid before
you in reference to the law have laid it down.
1he jury retired, and after absence of nearly two
hours brought in verdict the plaintiff assessing
the at So SOC against smith, and $500 against
BRUSH Mr. Smitn expressed mis- intuutien IN appeal