Nashville union and American. [volume] (Nashville, Tenn.) 1868-1875, 1869-11-02
NEW SERIES, NO. 3e8.


and sustaining the distinction and opinion
now rendered by the court in this case.
But the decision of the Queens Bench
is much stronger than this. quoted only
the portion of it which was Incorporated
into the decision of the Supreme Court
The case was decided on a demurrer to the
declaration, and the Lord Chief Justice In
deciding the demurrer SAYS: 1.-THE de-
murrer to the declaration in this case can
only be maintained on the ground that the
action will not lie acithOut proof Of express
malice as contra-distinguished from legal
malice. If proof of express malice was
required then the action would not lie
Why? Manifestly because express malice
could not be proved against corporation.
And the Lord Chief Justice went on to
show, as seen in the quotation before given,
that legal malice as contra-distinguished
from express malice, might be established,
by proof of publication, without reference
to the real motives of the defendant, and
dismissed the demurrer That action was
sustained, then. on the distinct ground
that proof of express malice was
not required, that only legal malice
need be shown, which was a matter of
legal implication, involving no inquiry int
the real intentions of the defendant, and
hence that case is a very decisive authority
against the plaintiff in this action.
We next pass to the case of Goodspeed
as. the East Haddam Bank, % Conn $50,
also cited by the plaintiff This was an
action against the bank for malicious
attachment and was case, in its main fee-
lures similar to this, though brought under
the provisions of a statute which we have
- H. ,,,1r e Ia
court. The court consisted of five Judges,
one of whom was incompetent by virtue
of having sat IN the case on the trial at the
circuit. Two of the Judges, the Chief
Justice and another, thought the action
would lie against the corporation, and their
opinion became the judgment of the court.
The two other Judges thought differently
and filed dissenting opinion. The re-
manning Judge agreed with the minority In
opinion and had so ruled in the court be
low. So, in point Of fact, the opinion Of
the majority of the Judges FORM
ing the court was adverse to the judg-
ment of the court, and the judgment of the
court became its judgment, simply because
Judge Church happened to be Chief Justice
instead of Judge Ellsworth, who delivered
the dissenting opinion, or simply because
Judge Storrs happened to be incompetent
in the case, instead of Judge Wait, who
concurred with the Chief Justice. This de-
cision, then, as an authority, is of less value
and weight than it would be if delivered
under different circumstances, or If 1t were
the unanimous judgment of the court.
Looking at the opinion of the court and Of
the dissentients as arguments, merely, on
the one side and on the other, it strikes me
that the dissenting opinion of Judge Els
worth is the most convincing and the best
substantiated by reason and authority, and
that the opinion of the court is fatally de-
fective upon the point to which this opinion
principally relates-that is, as to the issue
of malice, as it exists In this action;
and that it is upon that point opposed to
all the authorities on the subject. In fact,
none are cited to sustain it. In this opin-
ion the Judge says 1t Is asked how can
the malice of a corporation be proved! 1t
must be proved, it is said, as well as alleged
in an action for malicious prosecution, as
distinct and essential fact. True, malice must
be proved, and, as we suppose, very much
in the same manner as it Is proved In other
cases of a similar nature against Individual
persons. The 1oaHt Of probable cause Of af-
ton is YrO9f Of malice
Is the want of probable cause proof Of
malice? If so, then proof Of the first issue
is proof of the second; then the first issue
| is the only issue to be tried in the action,
| and the question of malice, as distinct es-
| sentiaI issue of fact to be tried by the jury,
| does not exist in this action. But we have
| seen that want of probable cause Is not
| proof of malice. Want of probable cause,
L as we have seen, never raises more than
presumption of malice, which is presump-
ton of fact and may be rebutted Want OF
probable cause is proof of nothing, only
sometimes raising a presumption which
may be used by the jury as evidence on
the issue Of malice. Want of probable
cause, when established, does not dispose
| of or decide the issue of malice, but, as we
have seen. it may be established and the
issueof malice fail Andas all the authorities
| agree. they are two distinct. substantive IS
| sues in the case; and, therefore, one cannot
prove the other, although perhaps the SAINT
| evidence which establishes one may at tht
same time establish the other also.
Without stating further how the issue o
malice in this action may be proved, except
TO remark that ''for aught We know thu
books of the bank may prove it, - the cour
intimate that it may be proved the SAME
1
seen bv the authorities already cited, Is no
proved at all as a distinct issue of fact
exists by implication Of law when the fac
of the Injurious publication is established
and does not raise the question of tn
motive or real intent, for which reason
| alone. as we have seen from the decision o
the Queens Bench, Just quoted, can tina
| action be maintained against a corporation
1 fr,rthor criticism TN
, | Indictment Of these two judges in regard t
the principles, it announces, 1t
, perhaps enough to say, in the Ian
> g1age of Judge Daniel, of the Unite
. States Supreme Court, ''that in tn
! line of adjudicatiOns, it presents itself
a solitary and eccentric, and in opposition
the most inveterate, the clearest and reitel
Z | ated distinctions announced by the sages
\ the law. Distinctions having their Pounds
a | tion in reason and in the essential charaC
! ter of the subjects, to which these distln
I tions have been applied, and that, IN r.
ference to the precise point decided, 1t isul
. supported by any authority, so far as ha
, been able to examine them, unless perhap
there may be one or two which have adop
a ed this decision as authority without regal
- TO its arguments, or the real principles L
of volved in the action.
As TO the authorities cited by the defen'
J. ant the one from II Missouri, and Il
"a other from 81 Alabama, are precisely to u
a. point. and in my Judgment are conciusl,
n in their reasoning and supported by Il
! almost unanimous verdict ofall the author
Of ties on the subject
IN / am aware Of the tendency ofthe court
: of late. to enlarge the liabilities of corpoT
if tons. and must say that it was with e
!. trerne reluctance that l reached c0nel
ne | sion in this case which may seem to
Iv even remotely, q denial Of justice to {
m plaintiff. But until improved science
Al jurisprudence shall be able to endow eorp'
10 atoms with mind, passion, moral perez
va ton and faculties, this action can not
be maintained against them, at any rate n
&C ! until the nature and elements of the actl
ra are so changed that the real motives a
of intention of the defendant are not dlstn
! issue of fact to be decided by the jury
70 the case. 1t only remains then for
NIT court to instruct the jury to return a v
,at dict for the defendant.
- -ssS.-
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