
    Matthew O’Driscoll v. Hugh M’Burney.
    
    A memorial presented to a grand jury, complaining of the conduct of the plaintiff, who was a public officer, but not acted upon by the grand jury, is not such a prosecution as will support malicious prosecution. There can be no prosecution without an arrest.
    Nor is the refusal of the grand jury to act upon it, a sufficient termination of the case to support mal. pros., for application may be made to another jury.
    This case was tried before Mr. Justice Oolcock, at Colleton district, Spring term, 1818.
    This was an action for malicious prosecution. It appeared that the defendant had presented to the grand jury a memorial, complaining of the conduct of the plaintiff, who was a public officer; that it had been '^received by r*gg the grand jury, but not acted upon, and by them returned to the plaintiff *- as clerk of the Court.
    Upon this a nonsuit was granted.
    A motion was now made to set aside the nonsuit, on the grounds that this was a prosecution, and that it had been shown that it was at an end.
    
      
      
         Same parties, post. 58.
    
   The opinion of the Court was delivered by

Colcock, J.

The ease does not admit of the least doubt. This was not a prosecution. There can be no prosecution without an arrest. It is indispensably necessary to support this action, that malice (and that the arrest was without probable cause,) be alleged and proved. 2 Sel. IsF. P. 1051. If a man make an affidavit charging the commission of an offence or crime, but never takes out a warrant, although he may subject himself to an action, he will not be liable to this action. But if, by any possibility, it could be considered as a prosecution, it was necessary to show that it was at an end ; and the refusal of the grand jury to act on it, would not have been a final termination of it; for the defendant might have applied to another grand jury, who might have thought proper to present the defendant.

The motion is dismissed.

Nora, Gantt and Johnson, JJ., concurred.

RiIOHARDson, J., was absent at the trial of this case. 
      
       1 Hill, 199 ; 4 MoC. 357.
     
      
       Post. 244.
     