Memphis daily appeal. [volume] (Memphis, Tenn.) 1847-1886, 1872-01-12
Il GREAT GAS A
Fhe Judgment Arrested-The Whole
Thing = Nullity.


this case have been the most elaborate,
interesting and instructive, to which 1t
has been the pleasure Of this our to
listen. And when IL is said the court
listened with pleasure and instruction.
no empty compliment Is meant, but 1t is
spoken with sincerity and truth. So
hat If the court should reach g wrong
conclusion In this matter of so vast i'm
portance and interest, 1t will be the fault
OF the court and not Of counsel. And
II may be said for the jury that IL they
have committed error the responsibility
of that rests upon this cCIrt. The dell
cacy and ~difhdence, therefore, with which
IN 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 q
ike ordeal. / have attempted through
the whole of this trial, Of mors than -four
weeks duration, to keep in vi " my duty
under the law, and only that. Under that
l now proceed to determine the motion
for new trial snd the motion in arrest of
Judgment. And If, in what is said, notice
. not taken Of the msny points so ably ar
gued by counsel, it need not be considered
as indicating q desire TO pass them OVer
slightingly, but only that the near sp-
proach of the end of this term leaves no
time to elaborate, and besides the grounds
of the action Of the court do not necessi-
tate q review of all the points taken in ar
gument. And now as 20 b motion for a
newtrial: The court overrules this motion
as TO defendant Williamson, but grants 1t
as to Murphy and Tomeny, not because
on many Of the points taken by defend
ants counsel, 90 far rs defendant William
son Is concerned, the court is not almost
persuaded that IL committed errors. both
as to the charge given and In ths refusal
of some of the instructions asked, and is
so far convinced on others, that It would
be constrained to grant q new trial were
it not deemed not only unnecessary but
improper by the determination which I
now proceed to make on the other mo-
tion-the motion In arrest of Judgment.
This motion must prevail, and the iudg.
ment is arrested, n for the following
ressons:
II allowed in such q case to use argu-
ments db announcements, 1t would say that
the plaintiff has, with great trouble and
expsnss, obtained q verdict, and IL the ao-
ton of the court on this motion should
be decided to be erronsous, and by posi-
bility the sction Of the court on
the other motion sustained by the
revising court, the litigation Is end
ed, and smuch 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 pub
lie follows, If the motion for the new
trial should prevail, another verdict for
the plaintiff, under the view the court has
taken of the plesdings, would be nugato-
~, and upon an appeal after another trial
the same result must be reached, as tol-
lows the Aft 'msncs OF this action of the
court; nor will it do for defendants TO say
the court should grant a new trial because
they would probably have a verdict upon
the future trial, for the reason that the
court will not try q case over simply to al
low one side alone to have another chance
for q verdict. Besides, both plaintiff and
defendants are at fault-t6e plaintiff,
because his declaration is faulty; the de-
PENDANTS, because they did not take sd-
vantage of the fault fn IiRsiae by dsmur-
rer.
Inow proceed to give the grounds upon
which 1 base my action arrssting the
Judgment.
The court Is of opinion that it is beyond
the reach Of successful ~eonfutstion that,
in this csse, the decree of Judge Trigg,
In the case of T.. Dean vs. the city of Mem
phis, and the present plaintiff (for the
prosecution OF which, and obtaining the
Injunction on which, as the plaintiff, this
suit Is broughtl if not obtained by fraud
is conclusive evidences of probable cause.
In the opinion of the court, 1t accords
with the weight OF authority that q decla-
ration which alleges g decree or q court of
ALL ! III ~ = a q A2-
tendsnt in g suit for malicious prosecution
is conclusive Of probable cause, though
that decree 10 reversed on appeal unless
the declaration In avoidance of the con-
elusive effect Of that decree, alleges that
1t was obtained by fraud. Now, plain
tiff insists, in the first place, that tn sre
ia no allegation OF q decree by the United
States court in this case, and that they
successfully n eet the force of the proof
Of that decree, By proof that 1t was OBJ
tanned by fraud. List US see, then, wbss /
the declaration alleges upon this point
It's language is y that de. /
fsndant's counsel procured to be sued
q and prosecuted Q certain suit on the |
equity side of the circuit court of the /
United States for the district OF West
Tennessee, etc, in which suit the deisn-
dants prayed for and obtained an iniuDc-
ton, &c., q which raid ipiunc-
ton was issued out of ssid court, and
served On the plaintiff, whereby It was
restrained and inhibited from said eigh-
tenth DAY of September, 1857, etc,
until the eighteenth day Of Oetobsr, 1859 |
when the said injunction wss dissolved by
the supreme court Of the United States, |
and the said suit ordered to bs dismissed, |
etc. Here, then, is the distinct sverment
of the institution OF the salt and isSaing
the injunction by tho United States
court for the district of West Tennessee, |
and though there ia no positive sverment
OF the final decree BY that court In Deans /
the only way that the injunction
could be continued, until dissolved by the
cour of the United States, IL is
by necessary implication, and
'~fscts, however msteTisI," says Mr.. |
"f necessarily implied in any
expressly stated, need not them
selves be substantially alleged" For
this rnQnnn AZ mt for nthnra tho Oowrf 1
holds that the allegation OF the termina-
ton of the suit in the United States court
for the district OF West Tennessee,
is alleged In the declaration as conclusive,
as II alleged IN tohdem verbs. This be
ing 90, 1t is not insisted that there are any
facts syerred in avoidance of the oonclu-
sive effect of this decree, and the declsra-
ton Is Jeto de Sc, unless the defect is cured
by verdict; and whether it is or not de-
ponds, ss Is conceded upon the question,
whether or not the declaration contains q
detective statement Of 3 good q of
or 3 statement of 8 defective cause
Of action. This is a question Of authority.
I1dd's Practice, p, 949, reads:
At the common law, when anything Is
in the declaration, though It be mat
ter OF substance, II 1t DO such as that, without
proving It at the trial, the plaintiff could not
have had q verdict, and If there ne O verdict l
the plaintiff, such omission shall not ar
the Judgment. This rule, however, is to
be understood with some limitation; for on
ooktng into the cases., 1t appears TO be that
where the plaintiff has stated his title or
Zround Of action defectively or tnaccurately
because, to entitle him to recover, all ctrcum-
stances necessary, IN form or substance, to
the title so imperfsctly stated, must
proved At the trlsl) It is e fair pr0sump-
ion, after a verdict, that they were proved;
lut that where the plaintiff totally omits to
tate his title or cause OF action, IL need not
oe proved at the trial, and therefore there is
10 room for presumption. And hence II Is 8
General rule that a serdiet aglH aid q tstIs dsfso-
ipely set Out, bm no. q detective tbIsi or, in other
Fords, nothing is TO be presumed after YER ,
Lot but what Is expressly stated in the declB-
alton, or necessarily implied from the facts ,
which are stated. =
Mr. Goul0, IN his admirable work on
'lesdings, p. 49,, ! IL, IL, ID, Is, P. 46s. . 20, ]
says3
ARREST OF JUDGMENT FOR DEFECTS IN
PLEADINGS. d
Section IL. 1, Under the nrst of these heads 1
t Is an invariable rule that no defect IN tbs
leadings which would a. been fatal 70
hem, on general demurrer, can ever be q sum-
lent cause for arresttng Judgment. The I
rincIple of this rule is apparent from the /
consideration that ali merely formal defects In J
are aided, except on special demurrer, I
ssigning them I T cause; and consequently, '
hat All deiects, on either side, which would 9
ot have been fatal on general demurer are
ured by the adverse party's pleading to fsaSe, I
? by g ogdut-in other words, by his omit =
Ing 70 demur spse1dul. 8
Sec. u. 1t Is, however, by no means un1vers. c
lly true, . c0ptf7eo, blAb eNeIy ueIecl IN the \
headings, which would have been fatal on I
eneraI demurrer, 10 q sufficient ground for ar I
2 ting Judgment after q general verdict For Z
the pleading Of the party for whom such q ?
erdiot has been found is faulty, in emitting Q
Dme particular fact or circumstances, without .
Thieh he ought not TO have Judgment, evf =
Inch e, HepeTthelsss, tBlpsed 81, or tnfeT0bte I
ON the finding OF those facts which ave ex- 1
ressly alleged and found, the pleading is aid 4
d because the omisaion is supPliedl by ne :
other 1or1s, the court IN such . q
ase must pTeyums that the fact or clrcum- s.
.ance omitted was proceed 20 He fuTg. !
Sec. IL. The ground or principle on which q
ny f&ct not alleged Is 20 be presumed in sup 4
ort or q general verdict Is, that as the verdict ,
lust be considered es true, and as founded on d
gal eUfdeaoe exhibited at the trial, the court, u
mich can judge only from the record, must 3
reeuns in support Of IT, that any and every 4