The dismissal of the warrant by the justice of the peace with the consent of the defendant was a sufficient proceeding to authorize the plaintiff to sustain this action, and ordinarily such a determination would place the burden upon the defendant to show probable cause. Where, however, the proceeding is dismissed by virtue of an agreement between the parties, the principle does not apply. There was testimony in this case tending to show some arrangement between the parties, under which the plaintiff paid a part of the costs and was discharged. In Massachusetts it is held 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 (318) malicious prosecution." Langford v. R. R., 144 Mass. 431, and the cases cited. It is unnecessary to go to this extent in the present appeal, but we are of the opinion that in view of the testimony as to the agreement, there was error in charging the jury, without qualification, that the burden of showing probable cause was on the defendant.
New trial.
Cited: Marcus v. Bernstein, 117 N.C. 33; Welch v. Cheek, 125 N.C. 355.