The opinion
Chapman, C. J.
The first count is for assault and battery and false imprisonment. But the plaintiff’s statement of his case is, that on a complaint of the defendant against him the police court issued a warrant against him, and by virtue of this warrant an officer arrested him, brought him before the magistrate, and kept him in custody till the magistrate discharged him. Such an arrest and imprisonment does not constitute an assault and battery, for the acts were done by virtue of legal authority.
The second count alleges that the defendant falsely and maliciously accused the plaintiff of obtaining goods from him by false pretences, and made a complaint therefor, and had the plaintiff arrested and imprisoned for three days.
Omitting all consideration of the lack of such allegations in this count as would be necessary to constitute a charge of malicious prosecution, we think the judge correctly ruled that the facts stated by the plaintiff, if proved, would not support the action. The statement, though it may show malice, fails to show a want of probable cause; and the prosecution was terminated by a nolle prosequi. If the nolle prosequi had been entered regularly, by the proper officer, it is settled that this action could not have been maintained. Parker v. Farley, 10 Cush. 279 . Brown v. Lakeman, 12 Cush. 482 . The entry was made irregularly for neither the magistrate, nor the person who advised him, appear to have had any authority to make it. Gen. Sts. c. 172, § 20. But this does not strengthen the plaintiff’s case; for he has been discharged without a trial, and nothing appears to show that be was arrested without probable cause. See Dennehey v. Woodsum, 100 Mass. 105 . Judgment for the defendant.