Lamprey v. H. P. Hood & Sons ( 1905 )

The exceptions to the denials of the defendants' motions for an order of nonsuit and an order directing a verdict in their favor raise the question whether the entry by the solicitor of a nolle prosequi in the state case was, under the circumstances, a sufficient termination of the case in the plaintiff's favor to enable him to maintain this action. The answer to this question depends upon the answer to the further question, whether the entry was procured by the plaintiff or was made in consequence of a compromise to which he was a party. If it was caused in either of these ways, it was not such a termination of the case as will support this action; but if it was not so caused, it will support the action. Woodman v. Prescott,66 N.H. 375. The latter is a pure question of fact. The circumstances under which the entry was made do not conclusively show that it was procured by the plaintiff or was occasioned by a compromise to which he was a party. There was evidence from which the jury could find that the entry was the act of the solicitor, induced solely by the advice of the court as to the law governing the case. The defendants' motions were properly denied.

The exception to the admission of the docket entries in the former case as evidence is not insisted upon. State v. Cox, 69 N.H. 246.

Exceptions overruled.

All concurred.