The sun. [volume] (New York [N.Y.]) 1833-1916, 1876-02-29
THE GREAT SCANDALAGAIN
BENZ. =. BUTLER'S APPEARANCE IN
A BROOKLYN COURT
Arguing the Demurrer In MIR. Moulton's suit
A -Four Hours Talk Devoted TO the In-


ArTuing the Demurrer In MIR. MouIton's suit
A -Four Hours Talk Devoted to the Inc
depreciation Of Law Covering this Case.
The Supreme Court room i'm the Brook
lyn Court House was crowded Yesterday morn
Ing by the same class OF persons that have fol-
lowed In the wake OF the scandal through the
courts. The prevailing curiosity however, was
to see Benin L. Butler, VINO I with his eyes
closed and his head thrown back on the chair
likeness OF recumbent statue. Mr.. Shearman
asked how much time would be allowed. The
Judge answered that 1t was an old-fashioned
case, and he would give them a half hour each.
Mr.. shearman pleaded for four hours, saying
that the Of great interest, as there had
not been precedent for such a case in the last
two hundred years. Gen. Butler growed, " Per-
haps there hasn't been such an outr ige "a this
for two hundred years" Judge Dykrnan granted
three hours and half for the argument, and
Mr.. Shearman opened in behalf OF tho demurrer.
lie held that, IA matter OF principle, there
should be some way In which complainant in
a criminal SUIT could be relieved from RESPONSE
bilily IN case tho SUIT terminated in the defen-
dants favor; and the wit of man could devise
no better way than nollc prOscqui. Then, as a
matter OF Law, 1t was settled that In suit for
that the original prosecution has been 0ntlly de-
tcrmined In favor OF the plaintiff. IL his been
held insufficient to allege that the plaintiff was
discharged. lie must have been acquitted either
Ivy jury or magistr,te. Mr. Sne irnan quoted
largely from authorities, but said nothing about
GEN. PRYoRs ARGUMENT.
Gen. Pryor's speech was bright. eloquent
argument against the demurrer, supported by
over one hundred legal citations. Fiat nole
prOsequi Is a determination of the prosecution
Il proved 10y the fact tnat there never was an in
stance of any proceeding after nOle prosequi.
Chief Justice Hall originated the notion that
Uolle prOsedui oTcrlted only az stay OF pro-
ceedings, and with him 1t was an idle fancy
without a precedent in practice, and now re-
pudiated. In Massachusetts the law Is against
the pltintiu, but the decision arose In misap-
UrengU@iUU. In New YORK tue eupciuc pUiut
was never adjudicated. There were several
cases which passed through the courts, without
q question, but there Is no record OF them In the
hooks. The demurrer admitted all Of the facts
reclted, and the conceded fact Is that the prose
cution was nulle pross'd at the request OF the
defendant and the protest Of the present plain
TN Therefore the case stands sui generis IL
stood that party thus injured Is not without
an adequate remedy in the courts.
Gen. Buffers speech was comcal only In the
facial expression that accompanied 1t. His eyes
at times seemed closed too light for any gleam
Of light to enter between the lids; then In his
forcoo sentences he worked them up and
opened them, until they seemed To peer out OF
each other. As he progressed into his argument
he swelled M and grew red In the face, distend-
Ing his puffy cheeks.
TUE srATEsMAS's POINTS.
The General said that feelings Of duty as coun-
sci aud feelings of friendship had BROUGHT hun
bither. His answer to NJ. ShcarIpan's English
citations was that In Engiand the Attorney
General entered the nOlle prosequi without
consulting the court. When the power
Of the Cpur was ADDED to II. Then pursuing a
line Of argument for some time, wholly uuen-
livened 10y any reference to the circumstances
leading to the prosecution. he at length spoke
OF the periured testimony on which the indict-
ment was tounu, OF the long and tedious wait
ing for a trial OF the vigorous demand OF the
then defendant, now plainun, That 1t should De
seen whether or not he was guilty, or whether
somebody else should take his place In the dock
for perjury. citizen In the state OF New York
- taken 10y false aud perjurcd testimony for
malicious purpose, perhaps to anect his testi-
mony in a stit where heavy damages are claiu-
ed. Is indicted, arrested held to bail, aud when
that trial Is over, l. DENIED a trial. because by
COLLISION with the District Attorney his prose-
cutor gets nolle entered. because he is advised
by his counsel that 10y so dong lie can prevent a
suit for damages for malicious prosecution.
Can n mans liberties be 30 tampered with IN
New York stater Suppose a man Is sued not
only for LARGE damages, but the suit involves mis-
honor, almost his life. suppose there Is one
witness who stands In his way. suppose
this man has a fticnd who Is District Attorney,
| who has Oh an investigating committee
which has found him innocent, suppose that
| this man goes before this attorney and. for pur-
poses II his own, brochures an indictment, anu
suppose. after the trial OF his suit and after his
purposes have been served, he. by COLLISION with
another District Attorney who by the grace OF
God ana the Will Of the PEOPLE has come into
Office, prOCures a nollc pToseqai TO escape the
| consequences Of his malicious ana wicked acts.
says, Yes, swore the Indictment out; II i my
| there no remedy for the Indicted man. II T. tue
| v'r} principle ~ common law that there should
be right Tor every one Of the Infinite variety VI
| wrongs.
AUSTIN Abbott closed for the defence, and
| Judge Dy&man tu1is the papers.