Hatch v. Cohen
| Decision Date | 31 January 1881 |
| Court | North Carolina Supreme Court |
| Parties | JOHN HATCH v. WILLIAM COHEN. |
OPINION TEXT STARTS HERE
CIVIL ACTION for damages for a malicious prosecution tried at December Special Term, 1880, of LENOIR Superior Court, before Seymour, J.
Judgment for plaintiff, appeal by defendant.
Messrs. Manly, Simmons & Manly, for plaintiff .
Messrs. W. T. Dortch, W. E. Clarke and Merrimon & Fuller, for defendant .
The plaintiff in this action sues the defendant for having maliciously prosecuted him on a charge of burglary, and on the trial below several exceptions were taken for the defendant who is the appellant, but as only one has been insisted on in this court it is needless to state more of the case than is sufficient to present the point.
In his complaint the plaintiff alleged that after a bill of indictment for burglary had been found against him on his oath and at the instance of the defendant, a nolle prosequi had been entered by the solicitor with the consent of the presiding judge and at the express request of the defendant, and thereupon he had been discharged out of custody--all of which was admitted in the answer.
When the case was called for trial, the defendant's counsel moved to dismiss the plaintiff's action upon the ground that a nolle prosequi was not such an end to the criminal action against the plaintiff as would enable him to maintain his action against the defendant, which motion was denied by the presiding judge and the defendant excepted.
All the authorities agree in saying that in an action like the present one, the plaintiff must allege and prove a legal determination of the original action, but they differ as to whether the entry of a nolle prosequi in a criminal prosecution is such a determination of it as will justify the bringing of the other action. In this state that exact point has never been before this court; but, as it seems to us, a principle has been settled in some of its decisions, from which by analogy we are enabled to arrive at a conclusion in regard to it. In the case of Murray v. Lackey, 2 Murp., 368, the plaintiff had been arrested, at the instance of the defendant, upon a charge of perjury, and after a preliminary trial before a justice was recognized for his appearance at court where he attended during the term, but at its expiration was allowed to depart without further security for his appearance, no indictment having been preferred against him. It was held that under these circumstances an action for a malicious prosecution would lie, the failure of the state to send a bill and require other security of the party being equivalent, as it was said, to an order for his discharge. And so it was held in the case of Rice...
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