The New York herald., 1876-02-29
TheLatter's Suit Against the
Former for $4,000.
BUTLER AND SHEARMAN.
Argument on the Demurrer of Mr..
Beecher..
THE SCANDAL SLUlCES STILL OPEN

man In August or September OF 1874 Mr.. Beecher ap
peared before the Grand Jury Mr. winslow being Dis
rict Attorney that time and gave testimony upon
which that body found bill OF indictment against MI
Moulton for SANDER and libel Mr.. Moulton gave
bail and pleaded not guilty to the ndict
ment demanding at the same time an
eary trial In the fall of 1875 Mr. Moulton
wrote TO the District Attorney Mr Brtton and sought
an Immediate trial, but instead Of complying with his
request and with Mr. Bcecher's sanction nolle pros
equi was entered in the case. Then Mr. Moulton inst
tuted proceedings for malicious prosecution against Mr.
Beecher claiming the amount forth damages.
The attorney the latter Mr. Shearman then served
demurrer to the complaint, which argued yester-
day, and the court crowded to during
the day, the proceedings lasting from ten A. NJ. till
after five O'Clock in the evening On the bench
seated by the side of Judge Dykeman Chief Justice
Nelson, OF the Brooklyn City Court and Judge McCue,
pf Part l, same court The argument for sustaining
he demurrer made by Messrs Thomas G. Shear
nan and Austin Abbott, and against the demurrer by
General r. A. Pryor and General Benjamin +. Butler.
Mr. Shearman spoke for nearly hours citing nine0
reasons, fortified with authorities, why the demurrer
should hold good in law and be sustained. In concu-
zion he said
AShould the Court consider the question as one en-
trely new, and without being governed by previous
decisions OF tho courts, the conclusion must be
reached IL apy regard Is 10 be had 10 the general prn-
cplos which governed the administration OF JUS
lice in other matters by the tribunals of English and
American law. Actions for malicious prosecution arc
looked upon with disfavor. The American law has on
grounds Of public policy transferred both the respon
Bbilty and control of criminal prosecutions TO grand
Jury and District Attorney
l. The law allows no 'criminal nformatonsp las in
Englandl and no man can be accused by indictment
except the oahs OF the Grand jury and the act can
not bo trted private for damages until tried
before petit jury otherwise by the State.
2 The States attorney has the sole power TO prose
sute, and private counsel have power to determine
whether the prosecution shall proceed or not
g. Under this system the function of the citizen is
That oil normer and witness not in any proper sense
that OF prosecutor The designation prosecutor"
sometimes used is borrowed from the English law
traditional designation merely
1t results from these features of our criminal pro-
cedure that the public interest and right must be pro-
tected finally barred before private action to ques
tion the indictment can be sustained
The fact that there is no precedent for such an ac-
tion where there must have been many for
bringing II, II maintanable, is strong argument
against II
cepuon to the foregoing rule 1t is attempting
principle within the rule
Ifu is said on the OF her hand that It is a hardship
person who claims TO be uniustly prosecuted that
be should be deprived OF his remedy by acqutta and
by "a subsequent recovery of damages, and the maxim
Mat "every wrong should have remedy is invoked,
reply that this mOxlm is always limited but admit
hing full Application such cases though il quite
elear that there another remedy of more efficient
character although upon the ground otpubc policy 1t
is not by way of damages, for malicious pros
ecution cannot be sustained without perjury, and
Tor perjury there is an unqucstonaole and effective
remedy In the way OF criminal prosecution. II II is
great wrong, we answer that II the original prosecu
hon should be made successful by means of perjury,
that would be still greater wrong and yet 1t rs in
hsputabe that for this wrong no damages can be re-
covered.
less wrong has been committed TO wit: mere prose-
suion, not resulting in unjust conviction the Court
md the prosecuting officer together should have dis
,retien TO suspend the proceeolngsin SUCH manner
as to require the party claiming be injured TO pro.
;eed by way of criminal prosecution itself, instead OF
BY a civil SUIT II it SAID that stronger proof is
auired upon an indictment Tor perjury Than in
lion for damages, the to that is that is
much the for requiring who prose-
against the judgment OF the court and the DIS
lrict Attorney TO adopt that form of proceeding. He
thought to make hls case clear beyond the shadow of
toubt in order to justify his bringing any case into
court under such circumstances
GENERAL PRYoR's ARGUMENT
General Pryor then made eloquent argument, in
which, among other points argued most forcibly bear
Ing the position taken against the demurrer,
That plaintiff pleaded not guilty and then and
has been ready and anxious to stand trial
said Indictment, but the District Attorney in and Tor
lhe county OF Kings alter consulting with defendant
aud IN compliance with his request but against the
will and protest OF plaintiff did, on or about the 22d
DAY Of Octo6er, 1875 move the said City Court OF
Brooklyn that no!e prosequ be entered as to said
Indictment and the prosecution thereof against the
paintn, and the said City Court did then and there
grant said motion, and thereupon adjudged and
ordered by the said Court that nole proscqui should
be allowed and entered TO said indictment and prose-
rution against Plaintiff and the same was allowed and
entered OF record said court
That the said Indictment, complaint and prosecution,
and each OF them, is wholly ended and determined in
favor OF plaintiff, in the set forth the last
preceding paragraph
Defendant demurs and the specific point presented
for adjudication Is whether order of noe prosequi
granted by the Court motion Of the District Attor
ney and entered OF record is such determination of
the will support an action for malicious prose-
liza criminal prosecution be capable of termination
by a nolle prosequi the complaint sufficient Tor It
alleges the prosecution wholly ended and deter
mined. The reference TO the nole proscqu only ndi-
lha nf he arpIn ma pD nnl
qualify the tact OF the termination
nolle proscqul is such end Of the prosecution
will sustain this action.
Entry OF a nohe prosequi being end OF the prose
cuton the defendants discharge follows legal con-
sequence. lCitaonl briggs vs. Burton, A. W., l24;
Abb, N. Y Digest, 21Si and TO allege II would be
merely plead a conclusion Of law. II a nolle be not
an end Of the prosecution, then an allegation OF de-
Eendants discharge would be nugatory lCitation
In reviewing the authorities II is essential in
hmne TO distinguish between bearing on tho
point controversy and touching the question
whether particular termination be prima iace proof
Of want OF PROBABLE causei Tor universally nolle
proscqui alone though end OF the prosecution Will
not avail establish mallce want OF probable cause.
The precise point in controversy has been deter
mined both ways.
But concediug everything TO adverse authori-
tics II Is still apparent they cannot be decisive OF
THIS controversy; because a nolle proscqui by tho
states Attorney and a noile proscqui adiudged BY the
Court and matter Of record, dssimiIar IN sub
stance aud effect TO authorize inference from the
10 the other otherwise, as to authorities IN sup
port OF plaintiffs contention; Tor II nuc proscqu by
ihe States Attorney OF Itself avails TO determine the
prosecution multo iortiori VIII Judgment of noe
awarded hy the Court and recorded upon It's minutcs
ICitatious.l
ina, noIIe proscqui is sufficient to support an
action ior malicious prosecution has becn directly
and explicitly de ;idcd. lCitatOns
In conclusion he said that DO phase OF injury had
ever occurred that common lAw had not provided
remedy Tor.
GENERAL BUTLER's ARGUMENT
General Butler in opening his speech said IN sub
Stance that felt thar he owed apology for being
present where there were many others round MN
who competent the questions at issue.
In the early law there classes OF ac
tons-onc for CIVIL suit and the other for malicious
prosecution. Both classes governed ny the
fame rules OF common law In a civil suit the Attorney
General alone could enter nollc proscqu under the
common law But II the entering OF nolle proscqui