Levin v. Harmon Oil, Inc.

7 Conn. Super. Ct. 401, 7 Conn. Supp. 401, 1939 Conn. Super. LEXIS 134

Opinion

FOSTER, J.

The plaintiff brings his action against the defendant .for malicious prosecution. In order to recover judgment he must allege and prove his discharge or acquittal, lack ■of probable cause for the prosecution and the existence of malice on the part of the defendant. McGann vs. Allen, 105 Conn. 177. These facts he has alleged.

The defendant moves that the plaintiff make his complaint more specific.

1. By filing Exhibit A referred to in paragraph 1.

2. By stating whether or not the nolle referred to in para' graph 2 of said complaint was entered with the consent of the plaintiff.

3. By stating whether or not action was taken by said city court to discharge the plaintiff other than by the entry of a nolle.

The plaintiff has filed Exhibit A.

It is true that if a nolle of the prosecution against the plain' tiff was made at his request or by arrangement with him, or if he had a “hand in bringing it about”, he can maintain no action for .malicious prosecution. Brown vs. Randall, 36 Conn. 56; 18 R.C.L. Malicious Prosecution §12. These, however, are defenses.

The plaintiff sets forth a complete cause of action. If the plaintiff consented to a nolle of the case against him in the city court, the defendant may allege such fact in his answer and prove the same by competent evidence.

As to the nature of the discharge of the plaintiff in the city court, the records of that court are open to the defendant.

The motion for more specific statement is denied as to the demands appearing in paragraphs 2 and 3 thereof.