The sun. [volume] (New York [N.Y.]) 1833-1916, 1876-05-13
M0ULT0N ACT. BEECIIER.
ARGUMENTS HEARD YESTERDAT
BEFORE JUSTICE BARNARD.

A Large Delegation OF Brookivnites and New
Workers. Present-A Case Of Uuiaue Oppres-
sion-Nlr. Beccher's Technical Defence.
PouGuKEEPsIE, May 12.-The court room
was thronged this morning by persons from
New York, Brooklyn, and places along the Hud-
son, anxious to hear the arguments on appeal In
the case OF Francis ID. Moulton against Henry
Ware Beecher for damages for malicious prose-
cution. The complaint sets forth that Beecher
instituted a prosecution against Moulton for
libel, md caused him to be arrested and in
dicted, but that afterward the District Attor-
ney, by leave OF the Court, entered nolle prose-
qui, and 10 this manner the prosecution was
terminated in favor OF the pIsintin To this
complaint the defendant, Beecher. detDurred.
on the ground that It did not state facts sum
cent to constitute cause Of action. The de-
murrer was sustained by Justice Dykman at
snecial Term, and judgment entered thereon,
from which Moulton appealed.
Justice Barnard presided at the hearing, and,
In order TO accommo9atc the parties' he opened
court at 8 o'clock A. VI.
Gen. Roger A. Pryor, who appeared for Mr.:
Mouiton, said that the action was for abuse Of
legal process to the plaintiffs damage. and that
the specific points presented for review we're
granted by tho Courts on motion of the District
Attorney, and enterad Of record, was not such
action and second, whether on the spocil and
peculiar facts OF the case the action might not
of the prosecution. lie quoted a number OF
authorities to provo that the gist OF an action
for malicious prosecution was the want OF prob
able cause. and that the averrnent that the pre-
vious action had been determined did not touch
the merits, but was mere technical prerequi.
site. The technical prerequisite was only that
the particular prosecution be disposed OF In such
q manner that " would not ~ revived, and the
prosecutor must be put to a new one, aud that
an abandonment of the charge and discontinue
ance Of the prosecution was equivalent To dis
charge Of the purity from the accusation.
THE DEMANDS or JUSTICE.
He quoted the decision-Rindee vs.. Baker, 81
N. Y, 215-that where there are no precedents
that appear TO he binding on the conscience Of
| n Court, the demands OF justice require that
| In a proper case one should be made. In the
| present case we all agree that the plaintiff has
| sustained an injury for which he should have
redress. II IL possible that case precisely like
this has never before arisen, but " any shall
here fter rise, II may well be understood
| that a party thus Injured Is not without an ade-
quate remedy In the courts"
| were admitted by the demurrer, exhibited
case OF unique atrocity and oppression. From
| all other Instances Of malicious prosecution re-
he cIrcums stance that il was noIie pressed at
the special request OF the defendant and az inst
| the protest of the plaintiff. 1t was admitted
that, Il the prosecution were at an end, the
plaintiff would have redress for the outrage OF
| which be was the victim but the defendant
himself was allowed to perpetuste the prosecu-
ton, and so ESCAPE retrioution.
In the opinion OF Justice Dykman the iDdict-
| ment remained In full force, and the plaintiff
had no power over II. either to be rid OF IL or to
| be tried upon IL. Hence, the defendant. having
| ficated charge procured the Indictment and i'm
prisonment of the plaintiff, con,rved by ar
rangement with the District Attorney to arrest
the prosecution at point where u must remain
forever suspended over the plaintiff, 30 that,
although confessedly an Innocent man, he was
to iaboi for life under che iRnominy OF an In
dicted criminal. Aud for this unparalleled in
Jury Justice Dykman had said that the Court
| could give no relief.
BEECHERs DEFENCE.
| Mr. ehearman argued that II had been settled
by innumerable adju dications that action for
unless the oriRtnel prosecution was finally deter
mined In favor Of the plaintiff before the com
must show how the original prosecute termi-
mated, and IL must state that fact IN such man
ner as TO raise some presumption that the
action was without foundation. This could
only be done by alleging an acquittal, OF
something IN law equivalent thereto; that d
anal determination OF the prosecution that Il
had been settled by the decisions Of courts oil
the highest authority that an action for mall
| cious prosecution could not be sustained where
| the original prosecution was not terminated VI
| any other manner than by the entry OF noll,
| prosequi; that actions for malicious prosecution
we're looked upon with disfayor; and that the
| protection Of the citizen against wrongful crimi
nal prosecutions consisted nrst, In the require
ment that the Grand Jury nnd TN indictment
against him second, IN his right to quash II Il
illegal third, in his right, when once arraigned
to insist on verdict fourth, In the fact that II
| the intermediate period between the finding anC
| the arraignment, the Discretionary power OF TIA,
District Attorney to abandon or stay the pro
ceedinRs by noile pros. could not be exercised
without leave Of the Court.
| Mr.. ShoArman quoted numerous authorities II
support OF his points. In closing. he said =" II
If quite clear that there Is another remedy OF
more efficient character; for a malicious prose
cution cannot be sustained without perjury
and for perjury there ID an unquestionable ant
effective remedy In the way vi criminal prosecu
| tion.'
Justice Barnard reserved his decision.