New-York tribune., 1876-02-29
THE ARGUMENTS.

Couuy Courhonse was filed with persons desirous Of
hearing the argument the demurrer. Many had
doubtless come aud hear Gen. b. f. Butler
who was to make his first public appearance in connec
ton with the great scandal He conspicuous in the
courtroom sitting by Gen. II. A. Pryor, Mr. Moulton's
counsel Mr. Shcarmau was accompanied by Austin
Abbott and Iohn H. IIl and the table IN front OF them
was loaded with most imposing array Of law books
Judge Dynan called the about II o'clock, and both
sides responded Ready"
Mr. shcarnan asked II the court would allow two coun-
se to heard each sc and being answered that in
such case each would be allowed half hour, he said
thai the was one, precedent for II having
occurred wirhin the past two hundred year, and that 1t
would take two hours On his sllc. Judge Dykman con
seucd allow the parties until gig o'clock, and MI
then opened the argument for the demurrer
lie said that tine action one not favored by courts
Already there was too much trouble IN inducing
private citizens to undertake the burden oi
public prosecutions on public ground ana Tor thc
public good. Now, whatever may nave been tho case
200 years ago. at the present day the great dneuly
which Justice has II encounter In ths country IL The d-
Guilty OF inducing citizens to come forward and prosecute
public offenders. The courts should hesitate to put add
tOna penalty upon tho citizen besides the expense the
sIcraos OF tme and the aHnoyance which he must un-
deTgO in the Of tie prosecution putting The
additional burden upon him Of the risa OF another suit
coming forward putting him to double tial to st the
quest his good faith in that prosecution We are
Ter Of prime pie mode OF terminating prosecution
whiCa Dstr.cAttOney does not tIDk II proper ior
the Interests Of the public Ia coutnue some mode by
which he do that without subicc;iug tho prosecutor
the com planan-s lac should be more properly call
in tnis CON pla&t hero there Is private prose-
cutOI-by which the complainant should bo relieved oi
the burden OF action Tor MALICIOUS prosecution.
Criminal prosecutions not brought Tor private In
tcrts cannot be brought any citizen without having
the cOOpeiDOn Of tao DstrlcA;tUrucy aud the Grdni
Jury. The c,Z can O3t n no Oouedt, no part ot tho
line him. and ho have no bad motive except
one OF revenge, and desire To abuse persons. Vow.
against that is not Ia, accUs ID person sufficiently
guarded supposng il i possible foe the law to prov de
such a guaId, is not The aecnsed person sufficiently
tiarded-lirs 10y the Dlsirci-Atorney, who Is puhic
oiic and VINO advises GrI1I Jury whether or not
they shall hnd bill secondly b. he Grlnd Jury, WHEN
is "a public body Is influenced Dy private motive
aiiI private malice and ir ly, IN TINS STATE by the
add0nal protection OF the Court, without which 40 Dis
t.ic-Atioruey noie frO.eqd. Now. then, If
there Is TO be any method by which tho Prosecution cal
nc terminated and YET action iOr malicious pTuseeu
ton allowed, Eeso he Gny better method devised by
ihs Wit uf man than TIE entering OF HOiIe prcSeIn
Your Houor viii sse tAat it cannot be doEe In Ia fist
place. without Tie consent Oi tue UstricAttorneyi IN
the ocOld pace, tLs State for al practical purgoscs
. cannot aso HitDOnt thc consent OF the Court
wllcl must b. sa,deG before The DIs4.cAitorncy can
enter noiie prose that he acts for good and
10 advance pdD'c 'hds.
Referring to the supposed case Of innocent
bla. ind .clei AID discharged without remedy upon
,oAe 1,osequi Sir sicarnan thea id that the law
much harder hc 81 an innocent pcrsrn convic.ei
OF pcjuy prison ,fterwari able 10 prove
his innocence. How much stronger was llc reason why
be should have a remedy, and yet there was nothing
better settled Ia law lhIn Tat he bid su"h re lei and
tnat It vas imp. sble FOR hn - mainta hs action
under such circumstances.
The following points were then argued at length:
Itrs n has been ut,rei by iunnmerabie adl'!ic'i-
t.e c.nJiut ia tcn ior malicious prose-
ca4b 4St.nctiy sLOw til ,so OrI9ii lfOs cutioh
"S hhdiy 'cho' ih a'o 90 ."e ~ 'ih.iu O."e 80
ncnt t,e action liA rlr 10 enforced Win
4iiiJst stri2cicy IA ty.yIs iohhd'd upon criminal
roso utIOhs l. N uGr l"d5"ch' al "a o y .' ll",
cuIn au appeal IA rcrom pre- ch.s an acton Tor 'h
cioUs pr s,euuon .
ssc,ad: T45compaint must sAos hoo the original
yr,,acl, on tclIIcd. ahd It must tIai iict VA
such u 90 10 Fdir some presumption tnIt Tie
deuOn "as w.i4Out i'un l.oh. Ih' ."h "ny De uonr
- alleging e." "oJ"i"I 90 "oh,'"i"s ~ NV ,hat =
oI Iu sIDs ~ many cis,s.
IhiTd: any siltcn'njs tie complaint asserting In
90 oi t u v t t,,,,,i al, a. ,ii In ,,r Lima If
.nr facts XIV ,!cs1f r,iOa Oi Ia" nO1e of criina
Oh suinC.cut - SEON a ,ctinton ~ Lace, sac
cSurts listriu oIiur general ge mere con
ciusoiis % law. AMI dtiner tie cJitint WI i.
% d insufficient Wne upon t.c irIi the cyid nee viii
coniin u 10 determination n iic manner spooih,"iy
IS,t It has long been settled by the decisions of
.,r f LIE IA tngst .ioriiy ! Lat .i acton ,or mali
,iOi, prosecution osngo. S austIti wncrn tne ori-iia
prosecution cr'tCi ia any oihor nannei tLAn
| 10y Tao entry of "a Hois Ir05sTat -
Fih rGe noa.iio thtt noAe Eroseqai was not
si,IHcont bas!b I,f a"Dn oF ihaIlco"s ioscchlIon
sirOngl sipVr ed ny Otntr cl-os dat hC'!y hDd-
that a me.o absnd,nh'nt OF r.u3 cutDh II not siE-
cauoo, Ho'e lrscqa ~ criminal cases 70 ho'i
t1. "a Ofn" deciai.toh Dy ,ho ATTORNEY noii
I'll, vr Do.ic-Attorn Ina lr does not .nooSo to con
| tinuo ine Prosecution.
StLH: inc Io.nho Tor winch W" contend "a lni'reh
taly sup by class Vf cases IN whch the cod Z
han Dsc Required 10 consider whether te action could
b., tpauia.ue .t!1ut tn yrrdiC Ui pctt juIy.
II ciss wi no doIb' Cc cised ios tne plaintiff. bat
tney can Vly be made 10 a.va as authorities III ais
by partial citations, not taxing iio account tie
Seoem1t: II .no question should be considered "a
one, ann EOt sol Il - o ocvi'Ions VI to c..Its :"
England and N'M Lind, nor settled by tie wcigEty
Iac, tina. no acu0u ior malicious prosecution has ever
Le sustained u ths STATE upon evidence Of a tOHe
pivse ti, thrn lac Nature OI ,nst ocoeinS ssli 10
srliso Judicial determination II Ia not act of the
couI, Getty m,ir city. II can b. entered Ly to
tnc viii 0i tIo court; and although tne perm ION o
the court is necessary to enable botFeAttornoy 10
enter "A noiic prO4eq,i yet tie court bas u veto
power. and dds teiO can DC ovcrTulod ny ab Application
20 The Atorey General Furthermore, when II Is eii-
tered IL nua DLL may la rcyoSc ty the Attorney
Ganera aud, ai'er IS revocation, tic court Is bound
good cause appears to The CONTRARY TO Issue now
process upon indictment. 1t h snort nothing
than formal abindonIncnt of th5 prOsocuuOi-a
declaration OF court tIat the state does not III
| tend To proceed. 1t follows. [. ereore that noHe
prOSeIui Is more termination Oi Inc prosecution iih
| nny otner abandonment stay ~ the proceeding
Tao st proof, however. th a0ue ErJSc1 not
the nnal termination Of criminal procccdis Is 10 be
10 nd fact Tat IL IL not mcicy no bar 10 in
dctincnt, but tA. II Is al any tno cciDe by lie
| Attorney General and that "a new Sa.rnt may be
sssed a. in indictment alter tho HOe pTOSequi
| Ei0hh Should tbe Court consider the question
enur,ly new. and without Deng governed by previous
docnICns OF courts, the Same conclusion must 40
reached regard IL o Dc had TO lne gcnefni p1nci-
pies wnicn have governed tine administration uf justice
In utAer matters Dy the tribunals OF En5fsh and Acfi
law. Actions FOR malicious prosecution are Looked
uron with disiayor Upon this principe the courts
tend ~ OecUn 10 suilOis IN plNaic acn against un-
necessary arIassneni hy actions for malicious piosecu
ton or false Imprisonment and tnere Is lnnen stronger
reason for donir prosecutions dropped
public beBent and Ia tiie name aud under to control
OF the state. IL is not AT AL unreasouabo that wLon
nnaI al