
    John T. Langford vs. Boston and Albany Railroad Company.
    Middlesex.
    March 3.
    May 9, 1887.
    Field, C. Allen, & Gardner, JJ., absent.
    After a criminal complaint has been entered in the Superior Court, upon appeal, the entry of a nolle prosequi by the prosecuting officer, by the procurement of tlie defendant’s attorney, his discharge not being ordered by the court, is not such a termination of the prosecution as will enable him to maintain an action against the complainant for malicious prosecution.
    If a person does nothing more than to make a complaint to a magistrate against another for an offence, and the latter is arrested under a warrant duly issued by the magistrate, who has jurisdiction of the subject matter and of the party, the complainant is not liable to an action by the arrested person for assault and false imprisonment, although the complaint is defective.
   Morton, C. J.

The first count of the plaintiff’s declaration is, in substance, a count for malicious prosecution; and it cannot be maintained, because the evidence fails to show such a termination of the prosecution alleged to be malicious as will entitle the plaintiff to maintain this action. The entry of nolle prosequi by the district attorney of his own motion, followed by a discharge of the accused party by the court, may be such a termination of the prosecution as will enable the party to maintain an action for malicious prosecution. Graves v. Dawson, 133 Mass. 419. But our cases uniformly hold that, where a nolle prosequi 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. Parker v. Farley, 10 Cush. 279. Coupal v. Ward, 106 Mass. 289. Graves v. Dawson, 130 Mass. 78.

In the case at bar, after the complaint against the plaintiff was entered in the Superior Court, upon his appeal, a nolie prosequi was entered by the district attorney by the procurement of the attorney of the plaintiff. No discharge was ordered by the court. The Superior Court rightly ruled that the plaintiff could not maintain his count for malicious prosecution.

The second count is for assault and false imprisonment. One of the agents of the defendant made a complaint to a trial justice against the plaintiff for unlawfully refusing to pay his fare, and the magistrate thereupon issued his warrant in due form for the arrest of the plaintiff. Neither the defendant nor any of its agents did anything except to enter the complaint. It is well ' settled that, when a person does no more than this, he is not liable in trespass for the acts done by the officer in serving the warrant, even though the magistrate has no jurisdiction to issue the warrant. Barker v. Stetson, 7 Gray, 53.

J. 0. Lane, for the plaintiff.

Samuel Hoar, for the defendant.

In the case before us, the magistrate had jurisdiction of the subject matter and of the party; although the complaint was defective, the warrant was good on its face; and an arrest under it was an act done by virtue of legal authority, and does not constitute an assault. Coupal v. Ward, ubi supra.

Exceptions overruled.  