Nashville union and American. [volume] (Nashville, Tenn.) 1868-1875, 1869-11-02
IMPORTANT BANK SUIT.
wheeler vs.. The Second NatiOna
Bank-OpiniOn OF Judge Carey.

wheeler vs.. The Second National
Bank-OPiniOn OF Judge Carey.
In the last issue of our paper we noticed
the case of Wheeler against the Second
National Bank of this city, then on trial IN
the Circuit Court The action was for
malicious prosecution, and its trial con
sumed nearly all of last week and excited
much interest in the community, especially
among the members of the legal profession
because of the novelty and importance Of
the questions involved in it. The case was
prosecuted by A S. Colyar and Il. E.
Jones. and defended by Messrs. East and
Spurlock- The counsel for the defendant
insisted that in law the action could not be
maintained against a corporation. The
case went off on this question, the court
holding that the action could not be MAIN
tanned As this is a question never before
decided in this State, so far as we are IN
formed, we have been to the trouble to
procure the opinion of Judge Carey, de-
livered in deciding the case, yesterday,
and we publish the same in full. The i'm
portance of the question fully warrants its
publication:
James Wheless rs. the Second National Bank.
This suit is brought by the plaintiff
| against the defendant to recover damages
| for an alleged malicious prosecution OF an
attachment against him. The defendant Is
a corporation, and in the opinion of the
court the action cannot be maintained
against it. In order for plaintiff to re-
| cover in a suit for a malicious prosecution,
| two things must be affirmatively established
by him. or by the evidence in the case:
| First. That the proceeding of which he com
plains was instituted without probable
cause; and, second, that it was instituted
| maliciously. Want of probable cause and
| malice must concur. They are independ-
| ent facts. and must each be proved. They
| do not depend upon each other, and one
NAV be proved without establishing the
other. Want of probable cause may be
established and malice not be proved, and
so malice may be proved without establish
ing the fact, or even the presumption, OF
the want of probable cause. The malice,
then. necessary to be established in this &C
ton is actual or express mahce,
| which consists in the wrongful, corrupt
| or wicked intention, as contra distinguished
from legal malice, or such as the law i'm
| plies from the existence of the wrongful
act. The first exists in the wrongful mo
tive: the latter exists in, or Is implied
from the wrongful or injurious act, re
oardless. often. of the actual intent ant
motive of the wrong-doer, as in libel
SANDER and many other cases that nigh
be mentioned, and where the fact of tn
wrongful act is all that it is necessary t
prove in order to establish the offence.
Now that it is actual or express malic
IT is necessary to establish in a cas-
for malicious prosecution, is clear froT
both authority and reason. Greenlea
saws: @ Greenleaf, Ev. 453) ''Th
question of malice is for the jury and
sustain this averment the charge must hav
been shown to have been 1riBully false.
| In Hilliard on Torts it is said vol. l. pag
, | 421:) Unless the evidence in relation
? the circumstances under which the pros
cution was ended, and that given to estai
q ! lish the want of probable cause, justify IL
inference of actual mdiice, such otht
: evidence as will Justify the jury in tindin
| its existence must be given" In the cas-
q of Stone gs. Croker, quoted approving
/ by the Supreme Court of the United State
| "a How. SOL, the Court say: There Al
= two things which are not only indispensab
a | to the support of the action, but lie at I'll
foundation of it. The plaintiff must sho
= that the defendant acted from Dld1cl0l
a | rl0tt1eS in prosecuting him, and that
" had no sufficient reason to believe him
: be guilty. If either of these be wantlI
r the action must fail; and so are all Il
n authorities from very early period to u
r present time" And our own Supren
p Cont in the case of Kendrick as. Cypel
ii | 10 Hum. 294, in defining the malice nect
u | sarv to be established in this action 50
m | Couoting from B. and A. 38S, 594, II
term malice in this form of action IS not
q be considered in the sense of spite
no hatred against an individual, but OF mai
70 1DiD,us. and as denOting that the party
he ectuated byimproperand indirect motives
al Jrdre Red6eld in his note to the sech
90 | from Greenleaf, before cited, and quot
from 81 Vt lS9. saws: ''It is found IN alm
nm | every book upon the subject, that
m the defendant, however causeless
a did really act in good faith a
nd without malice, he cannot be made La
NO. for a malicious prosecution. The quest
of malice is one of intent and open to
of inrv in this class of cases." and furth
al tsNiaTce is Judged of with reference to
HI marty. and whatever fairly tends to sh
that he acted with good faith and with
iae moIice must be received" 'sBut 1t Is
in 60 " he saws. '.in reference to actions
Islander. The law then implies malce
the will not allow it to be rebutted by gene
see evidence, but only by specific proof OF "
ant the law declares a justification or excuse
sed the truth of the words; or that they "
nit spoken confdentially and upon justltia
occasion" Making the distinction betw
ills the two cases to be, that in an action
on malicious prosecution the ul0tt0e and anl
nm of the defendant constitute the malice,
are to be inquired into, while in the o,
;me case the motive is not at all maternal
ON support the action andforms no part OF
ON inquiry, the law presuming mallce VIII
regard to the actual motive, even when
the actual feeling and motive may have
Q TO innocent and friendly; and this distinct
Nc 1 think, will be found to separate thus
With all other cases when suits for torts
and been maintained against corporations
.Iect greeate. In those cases where nj
the was involved in the action, 1t tolloWe'
Ala an implication of law from the fact ave
the and proved, without regard to the az
motive of the defendant, as IN slar