Nashville union and American. [volume] (Nashville, Tenn.) 1868-1875, 1869-11-02

issue to be tr1ed-WnlIe III JHls Iue intent
or motive is of the very gist OF the action.
Again, it must be actual malice which the
law requires shall be established IN this
action, for the reason that the existence of
malice is substantive issue to be tried;
distinct fact to be proved. The question
of malice as a separate and distinct issue OF
fact, apart from the question OF probable
cause, has always been an issue for the jury
to try, even when the question of probable
cause was decided by the court Being a
thing to be pr0oed, then, it must, from ne
cessity, have an actual existence. 1t can
not be mere presumption, an implica-
ton, an inference. No issue can be made
TO try presumption, implication or infer
| ences. They cannot be proved, but flow
out of. or are drawn, or result from certain
facts which. when established, the law says
shall be evidence, conclusive or disputable
as the case may be, of certain other facts.
But they never form distinct issue OF fact
to be traversed. but rather result or are de-
termined from the trial and decision of
other issues and facts. As in libel, the
fact of the publication of the injurious mat
ter raises the presumption of malice, which
in that case is conclusive. But the fact OF
| malice in that case is not distinct Issue to
be passed on by the jury, and it IS not ne
cessary to be proved as a distinct fact by
| the plaintiff The only issue necessarily
raised in the case is as to the publication of
| the injurious matter, and that established,
/ the law then implies malice, even though
/ none existed in fact, and will not allow it to
| be disputed. But in actions for malicious
prosecution, the question of malice is made
/ a distinct issue to be tried by evidence
proper to the issue. 1t is not conclusive
| Implication of law resulting from want Of
| probable cause; otherwise it would not
have been made distinct issue, and prob
| able cause would have been the only issue
to be established to support the action. It
is not conclusive implication or presump-
| ton of law or fact resulting from want of
probable cause, for that issue may be found
| for the plaintiff and the averment of malice
| fail, as all the authorities agree.
know it is said in the case of Kendriek
gs Cvpert. before cited, that from total alb
| sence of probable cause the law would in
| fer malice. But the court did not base
| its Judgment on that ground, but on the
| ground that both the want OF probable
| cause and malice were clearly established
| by the evidence in the case. And certainly
| the court, by the expression that, from the
total absence of probable cause the law
| would infer malice, could not have meant
| TO saw that in such case conclusive Impllca-
| ton or presumption of malice would re-
| sult as q matter of law; for that would be
| to abolish the second issue from the action
i entirely. and make the whole case depend
/ upon the decision of the question OF prob
/ able cause; and the court IN previous
/ part of the decision had said that = To en-
/ title the plaintiff to recover IN tins action
he must show both malice and the want OF
| nrobable cause" In view of this language
/ and all the authorities on the subject, the
| court cOuld have meant no more, if as
much, than that in the total absence OF any
| evidence of probable cause, the existence
of malice might be inferred or presumed so
| far perhaps. as to shift the burden of proof
to the defendant or Justify verdict against
him In the case OF Hall as Hawkins @
Hum. 357.) the Supreme Court say " The
want of probable cause affords apresumptlon
| of malice. But this presumption
NAV be rebutted by other evidence showing
that the party acted bona tide and In the
| bonasf discharge of that which he believed
| to be his duty Showing clearly
that the presumption spoken of is not OF
law but of fact. and that it is the real IN
| tanfion and motive Of the defendant that
the iury are to search after, and that the Is
| sue is to develop-the hama .tdes or HldtHs
| aaiyaus. which mere implications OF law
| do NOT decide. and ''Hence, says billiard,
| volume one. page 42l, III want Of pro6a-
BILE cause be shown, the question OF malice
| must be left to the jury. Malice, he says
further" is in no case legal presumption
from the want of probable cause or one
which the jury are bound to make, 1t being
for the Jury to find from the facts proved
F | when there was no probable cause whether
! | there was malice or not. Malice may be
, | inferred from the want of probable cause,
! | Int the inference is not one which the jury
. | are bound to make" and TO this effect the
! | case before cited in q Howard Is decisive
: authority. And after all, all that these
authorities can be said to decide IS, that IN
! | deciding the question of malice the jury
NAV consider the evidence adduced IN the
: other issue of probable cause, and Il they
q find that there was total absence oil any
/ such facts and circumstances as would es-
4 tabIish probable cause, IN such cast
: malice would be a reasonable presumption
Y Still. as the court say In "a Howard, ''Wheth
e | err the prosecution was or was not com
a | roancad from malicious nlOtirssis a question
g | of fact audit is for them to determine Whetn
A | or the inference of malice is a reasonable
1 one Anu uOWutIt- III III Ne1'Sr ~ So -
# I have been able to examine, Is the issue o
, sucb malice made to depend on the issu,
: of probable cause Nowhere IS malice de
, cIsred TO follow as a presumption or imph
+ cation of law. from the want OF probabl
Il cause. Indeed it could not be, for then
\ rs before stated, the question of proba5I
NJ cause would be the only one necessary {
D. be tried. and the question OF malice as
N | distinct issue of fact would cease to exist
q Rnt on the contrary all the authorities agre
ID | and '.the text writers lay it down as tn
/ ! settled practice on this point, that tn
hi question of malice in the defendant MN
~ | in doing the act is a distinct issue IN III
10 | action" to be decided by the jury.
have been thus explicit to show thu
re- the malice required to sustain this acuo
Sc is actual malice, resting IN u
m motives and intention of the defendan
.af a substantive fact to be proved by the ey
he dence in the case, because am OF the Opn
To ion Il is this fact that defeats the plaintiff
We rioht to an action against this corporato
, - and bacause it is this that makes the al
ge thorities, cited by the plaintiff S counsel al
"a | ablv sustained in argument, lnapphcable
se- this case. with the exception, perhaps,
H. the case in % Conn. Reports, to be her
no | after noticed. In all these cases L TIM
Ter If will be found that malice (where NAH
no was inyoIved) was established by mphc
,se tion of law, and that actual malice was n
,Iv a fact to be proved, or an issue to be the
es and that the real intentions or motives
are the party defendant were not material
BILE the action. and where the absurdlty oil
he tributing malice to an aruhclal Demg
ow absurdity it Isl was an absurdlty OF the Ia
ms and not of fact, and where no quesuo
he arose as to how the defendant did actua
70 | tbinl, and feel. But here this corporate
inc | stands in an action where the very MI
re and heart of the defendant have
fhe | be looked into; where his motives ha
me- | To he scanned and Judged, and where
4rt iurv have to decide as a matter OF fact
,as, 70 the very quality of his intentions; wh'
ov tbe existence of malice as a matter
The fact forms the principal issue to be dec
70 ed Now it is an easy matter, perhaps,
or pronounce a corporation guilty IN a 5
ms for libel. Comparatively easy, though Z
y ia has never been done but two or tn
. . times for the law there declares the mai
io, without any reference 10 the actual feel
.ino or motive Of the party. But when We col
,oSf | as in this action, to inquire seriously as
/ if the real motives of the defendant, as
sIv what II intended, or how it felt, the SIT
and | tion is entirely changed, and we have
abIe saw. as matter of fact, that the defend
ton had no motive, for it had no sensible bel
tbe il thought no evil, for it had no mind
bar think: It felt no malice, for it had no he
the to feel; and therefore we must dec
how that this action can not be maintain
lout against this defendant corporation,
not cause it could entertain no actual NAL
4 of no malice in fact, without which the
and | ton can not be entertained.
,eral The distinctions here taken and the
What cision here given, think fully borne