Although the court is reluctant to grant a new trial upon the ground of a verdict against evidence, when the prevailing party has obtained two concurring verdicts, so far as known, upon the same state of the proof; yet, where in an action for a malicious arrest, the plaintiff, so far from proving the allegation in his declaration, that the defendant " failed to enter and prosecute" the suit claimed to have been brought maliciously and without probable cause, proved, that the defendant did so, in consequence of a promise that he would stop the suit, pay the costs and discharge the plaintiff from his arrest, as the conclusion of a settlement of all causes of action between himself and the plaintiff, including those alleged to be the causes of the supposed malicious action, the court, in deference to the legal rights of the defendant, will set aside the verdict against him, and grant him a new trial; the costs of the motion to abide the result of the suit.
AMES, C.J.
It is with reluctance that the court grants a new trial on the ground that the verdict is against the evidence, where the verdict is the second which has been obtained by the prevailing party, and, so far as we know, upon the same state of the proof. In the present case, however, we think that our duty leaves up no choice. In an action for a malicious arrest, as well as in an action for a malicious prosecution, the plaintiff must allege in his declaration, not only that the proceeding complained of is terminated, but the manner in which it has been terminated; for the reason, as explained by Lord Tenterden, in Wilkinson v. Howell, 1 Mood. Malk. 495, "that the termination must be such as to furnish prima facie evidence that the action was without foundation." The allegation being material, must, of course, be proved as laid.
In the declaration in the present case, the allegation in this regard is, that the defendant "failed to enter," his writ in assumpsit, claimed to have been maliciously and without probable cause issued, "and to prosecute the same; by means whereof said suit became, and was wholly ended, discharged, and determined." Now, the proof, on both sides, so far from supporting this allegation, the proof of which was incumbent upon the plaintiff in order to maintain his action, is concurrent and explicit, that pending the writ complained of the parties met by appointment, and settled their respective claims, embracing those alleged to be the foundation of the obnoxious suit, and exchanged receipts in full; and that, as the conclusion of such settlement, the defendant promised to pay his own costs, stop the suit, and see that the plaintiff was discharged from custody, on the jail-book. If the allegation in the declaration in respect to the mode in which the supposed malicious suit was terminated means anything to the purpose, it means, that the defendant neglected to enter and prosecute the same; whereas, the proof shows, that he did not enter it, because, as the conclusion of the settlement of all claims between them, he promised the plaintiff that he would not enter and prosecute it, but would pay the costs, and discharge him from custody under it. The plaintiff, who in common with all his witnesses, stated these facts, from which the conclusion is irresistible that the suit was settled, indeed says, "that he understood that the defendant and himself had settled, but not that the suit was settled, nor that one of the conditions of the settlement was, that the suit should be stopped." But this will hardly answer, in the face of his own statement, that after endeavoring to get him, and then his mother, to pay the costs of the suit, the defendant agreed to pay them himself, and stop the suit; and as proved by his own witnesses, that the defendant, upon the repeated injunctions of the friends of the plaintiff who came to assist him in the settlement, and in his presence, agreed to stop the suit, and to discharge him from jail.
The plaintiff having thus, not only failed to prove what was necessary to maintain his declaration, but proved the precise contrary of it, we cannot, in deference to the legal rights of the defendant, allow this verdict to stand against him; and do, therefore, grant his motion for a new trial, the costs to abide the event of the suit.