Marcus v. Bernstein, Cohen & Co.

23 S.E. 38, 117 N.C. 31

• Court: Supreme Court of North Carolina
• Decided: September 5, 1895
• Status: Published

Opinion

Faircloth, C. J. :

His Honor charged the jury that upon the facts in this case the burden was upon the plaintiff to show to the-satisfaction of the jury, by a preponderance of evidence, that the prosecution was not only malicious, but that it was also commenced and the defendant was arrested without probable cause, and that the prosecution had terminated before the commencement of this action. Tins charge was quite favorable to the defendant, and as the plaintiff made no exception, those questions are out of our way. It is well settled that the criminal proceeding must be legally terminated before an action of this nature can be maintained, and it is unnecessary to cite authorities on that proposition.

What constitutes a legal termination of the criminal action is a question upon which the authorities are conflicting in different States. We shall not review them nor collect them into opposing scales for the purpose of finding in which scale is the preponderance of evidence, as this Court has said that a nolle proseguí is sufficient to enable a party alleging to maintain his action. Hatch v. Cohen, 84 N. C., 602; Welch v. Cheek, 115 N. C., 310; Groves v. Dawson, 133 Mass., 419. The essential thing is that the prosecution, on which the action for damages is based, should have come to an end. How it came to an end is not important to the party injured, for whether it ended in a verdict in his favor, or was quashed, or a nol joros was entered, he has been disgraced, imprisoned, and put to expense, and the difference in the cases is one of degree, affecting the amount of the recovery.

The defendant contends, however, that when a nol pros is obtained by the procurement or consent of the plaintiffs, that is an exception to the above rule. We are not aware that that question has ever been presented to this Court, but we are inclined to agree to that proposition. In Langford v. Railroad, No. 114 Mass., 431, it was held that, “ Where a nol pros is entered by the procurement of the party prosecuted or by his consent, or by way of compromise, such party cannot have an action for malicious prosecution.” We do not think, however, that the facts in the present case make an exception to the general rule. The plaintiff protested all the time that his arrest was malicious and without just cause. There was no compromise, as the plaintiff only paid his debt, which he was in duty bound to do, and the defendant paid the cost of the prosecution. This was the arrangement or agreement, and nothing appears to show that the plaintiff procured the nol pros, any more than that the defendant entered it on his own motion. In fact, his paying the costs rather indicates his desire to have a “ stet processus,” as it is called in the early books, and also indicates that his action was instituted more for the purpose of collecting his debts than because of any criminal offence, or from any patriotic motive, which purpose can receive no sanction in this Court, and should not be encouraged in any court. It is an unauthorized mode of the strong controlling the weak'.

“ Procure ” means “ to contrive, to bring about,-to effect, to cause.” Webster Diet. Procure means action, and the nol pros must have been at the instance or request of the plaintiff. If it can not be seen at whose instance the dismissal was entered, then the general rule prevails, because the reason and the grounds upon which the exception is based do not appear.

No Error.