Welch v. Cheek

• Decision Date: 05 December 1899
• Citation: 34 S.E. 531,125 N.C. 353
• Court: North Carolina Supreme Court
• Parties: WELCH. v. CHEEK.

34 S.E. 531

125 N.C. 353

WELCH.

v.CHEEK.

Supreme Court of North Carolina.

Dec. 5, 1899.

Malicious Prosecution—Original Action— Discontinuance—Procurement— Effect—Finding.

Where, in an action for malicious prosecution in causing plaintiff's arrest for embezzlement, defendant pleaded that there was no trial of such charge, because plaintiff prevailed on defendant to drop the matter, such allegation raised an important issue, which was properly submitted to the jury, on which their affirmativefinding was conclusive of the action, since a discontinuance of the prosecution at plaintiff's request precluded his recovery.

Appeal from superior court, Randolph county; Shaw, Judge.

Action by 0. H. Welch against Josiah Cheek. From a judgment in favor of defendant, plaintiff appeals. Affirmed.

J. A. Barringer, for appellant.

J. T. Morehead, for appellee.

FAIRCLOTH, C. J. This is an action for malicious prosecution. In the criminal action the plaintiff alleged that the defendant had embezzled $100 of plaintiff's money, which was denied. The plaintiff in this action was arrested under a warrant, and he alleges that it was done maliciously, and without probable cause. The defendant avers, in his answer, that "the plaintiff prevailed on the defendant to let the matter drop, which was not done voluntarily by the defendant; on the contrary, there was no trial by the consent and at the procurement of the plaintiff, " and that he paid some of the costs which had accrued. The jury rendered a verdict on the first second, and fourth issues in favor of the plaintiff. The third issue, "Did the plaintiff compromise said action with the defendant, and agree to and consent to the ending of the action before J. P. Philips, justice of the peace?" was answered "Yes" after the evidence was heard. The above quotation from the answer, first above copied, we think raised an important issue, and was not merely an evidentiary fact, as insisted by the plaintiff, and was properly submitted to the jury. It is a settled rule that, before an action like the present, to recover damages, can be maintained, the criminal action must have terminated in some way, either by nol. pros., verdict or quashing, etc. When, however, the termination has been induced and brought about by the defendant, he cannot maintain an action for damages. "Where a nol. pros, is entered by the procurement of the party prosecuted, or by his consent or by compromise, such party cannot have an action for malicious prosecution."...