
    BENJAMIN v. GAREE.
    Malicious prosecution — the putting an end to the prosecution — discharge by a justice after íecognizance.
    To sustain a suit for a malicious prosecution, it must be averred that the prosecution is at end. Where a justice of the peace has taken a recognizance of one accused of crime to appear in court, the law makes it his duty to return the recognizance, and he has no power to cancel the recognizance and discharge the accused, and if he do so, his acts are void.
    If a party, &c. who has been so discharged by the justice, would put an end to the prosecution, he should appear in court and obtain an order for his discharge.
    Case for maliciously charging plaintiff on oath with having'stolen a trace chain, and procuring him to be taken on a warrant for larceny, and to be detained a long time before a justice, before and after examination, to enter into recognizance to appear at-the Court of Common Pleas, to answer the charge. It is averred that the justice, after the recognizance was taken, judging the proof insufficient, refused to return the recognizance to the court, cancelled it, and discharged the plaintiff, of which the defendant was notified, and has no further prosecuted his complaint, but abandoned it, and so the same is wholly ended.
    To this there is a general demurrer.
    
      H. Stanberry, for the defendant,
    cited 2 Stark. Ev. 907, and notes.
    
    
      H. Hunter, contra,
    cited 2 Ch. PI. 606, note 1 T. R. 536.
   Wright, J.

To sustain a suit for a malicious prosecution, the plaintiff must aver and prove that the prosecution of which he complains, is legally at an end. The plaintiff, in the case, before us, seeks to satisfy this requisite, by alleging that the examining justice, who, when first acting on the complaint, adjudged the ground sufficient, and recognized the accused to appear at court, to answer the charge, afterwards changed his opinion, refused to return the recognizance, gave' notice to the prosecutor, and discharged the accused. It is by law made the duty of the justice, if he recognizes a party to answer to the complaint, to return the recognizance, with a transcript of his proceedings, to the clerk of the Court of Common Pleas, or to the attorney for the state in the county, without unnecessary delay. 29 O. L. 197. After the justice, acting as an examining magistrate, has recognized a party, he has expended his entire power over the case, and can no more interfere with it, and if he do so, as in the case before us, his acts are null and void. The notice to the complaining party, and his neglect to prosecute, does not make the justice’s discharge valid. The party accused however can, if he choose, obtain his discharge, by application to the Court of Common Pleas, and when that is done, may sue, the prosecution being then at an end.

The demurrer is sustained.  