Public ledger. [volume] (Memphis, Tenn.) 1865-1893, 1872-01-11
THE GREAT GAS CASE,
JUDGE HElsKELL's OPINION.
The Judgement Arrested-The Whole
Thing a Nallity.
The Memphis Gayoso Gas Co. !


no empty compliment is meant, but it Is
spoken with sincerity and truth. Sc
that if the Court should reach wrong
conclusion in this matter of so vast i'm
portanoe and interest, it viii be the fault
of the Court and not Of counsel. And
it may be said for the jury that if they
have committed error the responsibility
of that rests upon this Court. The deli
cacy and diffidence, therefore, with which
an approach is made to the determine
ton of the motions now before the
Court can scarcely be appreciated by
any one who has not passed through Il
like ordeal. have attempted through
the whole of this trial, of more than
four weeks duration, TO keep in view my
duty under the law, and only that. I'm
der that now proceed to determine the
motion for nep trial and the motion in
arrest Of Judgment. And, If in what is
said. notice is not taken Of the many
points SO ably argued by counsel, it need
not be considered as indicating desire
to pass them over slightingly, but only
that the near approach Of the end of
tkis term leaves no time to elaborate,
and besides the grounds Of the action Of
| the Court do not neee5sitate a review Of
all the points taken in argument. And
/ now as to the motion for 8 new trial:
The Court overrules this motion as to
defendant Williamson, but grants it as to
Murphy and Tommeny, not because on
many of the points taken by defendants
counsel So far as defendant Williamson
is concerned, the Court is not almost
persuaded that it committed errors, both
as to the charge given aud in the refusal
of some of the Instructions asked, and
so far convinced on others that it would
be constrained to grant new trial were
| it not deemed not only unnecessary but
improper by the determination which
now proceed to make on the other mo-
tion-the motion in arrest Of judgment.
This motion must prevail and the iudg-
ment is s--ss..Saa, and for the following
reasons: If allowed in such a case
to use arguments db inconrenieai, it
would say that the plaintiff has, with
great trouble and expense, obtained
verdict and il the action of the Court
on this melton should be decided to be
erroneous, and by possibility the action
Of the Court on the other motion sus-
tanned by the revising court, the litiga-
ton is ended, and much public time
saved. On the other hand, if the action
OF this Court On this motion is Sustained
by the Supreme Court the litigation is
ended, and the same result to the public
follows. If the motion for the new trial
should prevail, another verdict for the
plaintiff, under the view the Court has
taken of the pleadings, would be nuga-
tory, and upon an appeal after another
trial the same resplt be reached as fol-
lows the aairmance Of this action of
the Court; nor will it do for defendants
to say the Court should grant new
trial because they would probably have
a verdict upon the other trial, for the
reason that the Court will not try a case
over simply to allow one side alone to
have another chance for a verdict, be-
sides, both plaintiff and defendant are
at fault-the plaintiff, because his declsr-
alton is faulty the defendant, because
they did not take advantage of the fault
IN imine by demurrer.
| now proceed to give the grounds
upon which / base my action arresting
the judgment:
The Court is Of opinion that it is be-
yond the reach Of successful confutation
that, in this case, the decree of Judge
Trigg, in the case of 7. Dean VS.. the
City of Memphis, and the present
plaintiff for the prosecution of which,
and obtaining the injunction on which,
as the plaintiff, this suit is brought, If
not obtained by fraud is conclusive evil
dence of probable cause In the opin-
ion OF the Court. it accords with the
weight of authority that declaration
which alleges decree of court of COM
petent jurisdiction in favor of defen-
dsnt in o suit for malicious prosecution,
is conclusive Of probable cause, though
that decree is reversed On appeal, unless
the declaration IN avoidance of the con-
elusive effect Of that decree, aileges that
IL ioas obtained By fraud Now, plain
isF insists, IN Che krst place. that there is
no allegation Of decree by the United
States Court in this case, and that they
successfully meet the force Of the proof
of that decree, by proof that it was OBJ
tanned by fraud. Let us see. then, what
the declaration alleges upon this point
It's language is that de.
PENDANTS counsel procured to be served
and prosecuted a certain suit Oh the
equity side Of the Circuit Court of the
United States for the District Of West
Tennessee, ETC., in which suit the defen-
dants prayed for and obtained an iHyuRc
ton, ETC., which said injunc-
ton was issued out Of said court, and
served on the plaintiff, whereby il was
restrained and inhibited from said eigh-
teenth day Of September, 1867, etc,
until the eighteenth day OF October, 1869
when the said injunction was dissolved
by the Supreme Court Of the United
States, and tho said suit ordered TO be
dismissed, etc. Here. then, is the dis
tinct averment Of the institution Of the
suit and issuing of the injunction by the
United States Court for the District of
West Tennessee, and though there is no
positive averment of the final decree
by that court in Deans favor, yet
this Court knowing that that was the
only way that the injunction could be
continued until dissolved by the Su-
preme Court Of the United States, il Is
averred By necessary implication, and
facts, however marterial," says Mr..
Gould. If nccessarily implied IN any
fact expressly stated, need not them
selves De substantially alleged" For
this reason, II not for others, the Court
holds that the allegation Of the
termination Of the suit in the United
States Court for the District Of West
Tennessee, is alleged in the declaration
as conclusive in t0futcm verbs. This
being 50. Il is not insisted that there are
any facts averred in avoidance OF the
conclusive eject Of this decree, and The
declaration is fel0 Dc sc, unless the defect
is cured by verdict and whether il is or
not depends. as is conceded upon the