The New York herald. [volume] (New York [N.Y.]) 1840-1920, 1876-05-13
MOULTON-BEECHER.
Argument by Opposing Counsel at
General Term Yesterday.
THE DIVERSE POINTS PRESENTED
Long Statements in Reference to
the Demurrer.
Pououkxnrsrs, N. r.. May IL, 1876.

PouoHKEnPsrE N r.. May ~, 1870.
| The case or Francis D. Moulton appellant, against
Henry Ward Beecher, respondent, was argued At the
General Torn this morning. Roger A. Pryor appeared
for Mr. Moulton and Thomas 8. Sherman Tor Mr.
Beccher. II appeal from Judge Dyckman's de-
cison sustaining demurrer tho famous suit Tor
lcious prosecution against Mr. Beccher Each counsel
occupied threcquarcrs OF hour and the Court House
crowded, many clergymen Of this city being pres.
emit During his argument Mr.. Pryor alluded In pa.
thctc manner Mr. Moucn's position, asserting that
he is nearly ruined financially, having been compelled
part his property doray the expenses OF this
| fined closely to his points.
Tho Court took tho papers and reserved its decision
| THE CASH FOR THE APPELLANT.
On behalf Of the appellant counsel submitted the fol-
lowing as his statement of the case:-
Appeal from judgment entered on ordor sustaining
demurrer TO complaint.
Action for abuse OF legal process to PLAINTIFFS dam
age The specific points presented for review, are:-
! fyra-Whe,ner an order OF no!le proscqu granted
by tho Court motion OF the District Attorney. and
entered record, be such end Of the prosccu-
| ton will support the acton; and
Second-Whcsher. on tho special and peculiar facts
OF the the action may be maInlancd without
technical termination oil the prosecution.
| The following were the points submitted
| Ffrst-na criminal prosecution DO capable OF ter
mnation by nole prosequi, the complaint SUM-
cient; Tor II alleges the prosecution was wholly
ended and determined. Tho reference to the nolle
prosequ only indicates the manner Of the termination
| but does not qualify tho tact oil tho termination.
a-Tbe gist OF the action for malicious prosecution Is
the want OF probable cause lJohnsone Sutton. T.
r. 544 and the avcrmen that the previous action Is
determined does not touch the merits, but Is nero
| ''tcchncal Prerequisite
conspiracy, "A technical acquitta was Indispensable
the support OF this action (Iot j., In Goddard
however II IS not essential that The prosecution 80
terminate TO discharge the offence and oppose bar
fresh proceeding An end OF the particular prose-
c-Here tho particular prosecution is determined.
In civil nolle prosequl ''is acknowledge
ment or agreement by the plaintiff entered record,
that he will no further prosecute his SUIT
d-A noIe proscqu is such end OF the prosecution,
will sustain this action Entry of noe prosequi
charge follows legal consequence II the noiic be
not an end OF tho prosecution then an allegation OF DO
fcndant's discharge would be nugatory
SecodOn the SPECIAL and peculiar facts Of the
the action will lie though the prosecution DO
end.
a-Hitherto fhe argument has assumed that until
determined, a legal proceeding cannot be made
ground 0t action. But the ruo Is not nhexible, and,
being mere technical prerequisite" supra, point ~,
like formal notice or demand IN certain other actions,
the condition Is waived when inconsistent with the
claims OF substantial justice.
b-The complaint, which all tho allegations are
admitted by tho demurrer, exhibits of unique
airocy and oppression. From all other instances OF
malicious prosecution reported In the books this dis
crlmlnatcd by the circumstance that II nolle
pressed tho special request Of the defendant and
against the protest paint II admitted that
II the prosecution were at an end painiif would havc
redress for the outage Of which he the victim but
defendant himself is allowed TO pcrpeunto the prosecu-
ton and so 10 escape retributon.
RESPONDENT.
Mr. Shearman, on behalf OF counsel for the rc-
spondent, submitted argument their motion to
have the decision of tho lower court confirmed He
stated that this is action for malicious prosecu-
tion the complaint in which sets forth that tho de-
fendant instituted prosecution against tho plaintiff
dicted and arrested but that aierward tho District
Attorney, by leave of the Court entered a nolle
prosequi, and that in this manner the prosecution
against the plaintiff terminated in his favor. To
this complaint the defendant demurred the ground
that 1t does facts sufficient to constitute
q cause Of action The demurrer sustained by
Mr. Justice Dyckman, at Special Term and judgment
entered thereon, from which the plaintiff appeals
The following are the points submitted by counsel in
their argument
Ftrst-lt has been settled py innumcrable adjudica-
tions only lew OF which Il can be necessary cile
that action for malicious prosecution be
tanned unless tho original prosecution finally de-
tcrnned In favor OF the plaintiff before the
mcnt OF the action.
Second-Tne complaint must show how tho original
prosecution terminated and It must state that fac, In
such manner TO raise some presumption that the
action without foundation This only be done
by alleging an acqui.tal or something which Is in law
equivalent thereto This rule LAID down, either lit
orally IN substance, in many cases.
Third-Any statements IN tho complaint asserting
IN general language that the original prosecut was
ended determined always construed In the light
of the mode OF termination forth the
II facts given description of the modc OF
mnaiion not sufficient 10 show termination in
iact tho courts disregard the other general language
conclusions Of law, and demurrer tho
plant will be held insufficient while upon the trial.
the evidence will DO confined to a determination In tho
manner specifically alleged
Fos-th-A noc prosequi, entered before the trial OF
Indictment Is not final determination Of tho prose-
cuton. IL is determination Of anything IL Is n
declaration OF the prosecuting officer that he does
intend TO proceed, which declaration he revoke
aud alter It's revocation the Court has power try
accused under the same Indictment
FIih--Accordingly Is has long been settled by tho
decisions OF courts OF the highest authority that
action for malicious prosecution cannot be sustained
whore the original prosecution not terminated In
any other manner than BY the entry OF . nolle
proscqut
yixth-rhc cases holding that noc prosequi 10 not
sufficient basis Tor action for malicious prosccu.
strongly supported by other cases, distinctly
not sufficient cause. since, we have shown nolle
prosequi In criminal cases 10 nothing than
formal declaration by the Attorney General or DIS
sict Attorney that he docs choose the
prosecution.
ferenaly supported by largo class OF cases in which
the have been required 10 consider whether the
action could be maintained without the verdict Of
petit Jury Some Of these by the plain
TN but they only be made to appear authorities
in his favor by partial quotations. not taking
count tho facts Of each casa Wesbai endcavor TO
seen that they afford no countenancc to this suit
Eighta-Thc avcrmcnt In the complaint that the nole
proscqu entered al the request OF the defendant
aud opposition 10 tho Will Of the plaintiff entirely