22 A. 456 | N.H. | 1890
To maintain an action for malicious prosecution, the plaintiff must show that the proceeding complained of as malicious was instituted without probable cause and is ended. "The new action must not be brought before the first be determined, because till then it cannot appear that the first was unjust." Bull. N. P. 12. If the first action is still pending, or if there has been a judgment against the plaintiff, or if he has terminated the suit by paying what was demanded (unless the payment was made under duress — Morton v. Young,
Whether the entry of nolle prosequi is a sufficient termination of a criminal suit to allow the party prosecuted to commence an action for malicious prosecution, is a question upon which the authorities are not uniform. In Massachusetts it is held that such an entry is not necessarily sufficient, and it is said that "whether a prosecution has been so terminated as to authorize the party prosecuted to commence an action for malicious prosecution, is to be determined by the facts of the particular case, of which facts the entry of nolle prosequi may be one of several, may be the only fact, may be a controlling fact, or may be an entirely unimportant one." Graves v. Dawson,
In other jurisdictions the entry of a nolle prosequi is held to be sufficient. Stanton v. Hart,
The rule supported by reason and authority seems to be, that if the proceeding has been terminated in the plaintiff's favor, without procurement or compromise on his part, in such a manner that it cannot be revived, it is a sufficient termination to enable him to bring an action for a malicious prosecution.
Exception overruled.
CARPENTER, J., did not sit: the others concurred.