
    ALFRED HESTER VS. BENJAMIN HAGOOD.
    In an action for malicious prosecution, an averment in the declaration that the plaintiff “had been discharged out of custody, fully acquitted and discharged of the said felony,” is not sustained by proof that the plaintiff was discharged on a return of ignoramus by the grand jury on ibe' indictment.
    “Acquittal” is technically used to express an acquittal on a trial by the petit jury.
    Amendments are within the discretion of the court, and are almost universally allowed, where they do not surprise, hinder, or delay the opposite party; they may be allowed after a mis-tfial.
    
      .Before Mr. Justice Richardson, at Pickens, Fall Term, 1836.
    This was an action for malicious prosecution. The evidence of the discharge of the plaintiff from the indictment laid before the grand jury, consisted in the return “No Bill,” and an order of the court to discharge the then defendant, Alfred Hester. At the close of the plaintiff’s evidence, the defendant’s counsel moved for a non-suit, on the ground that the evidence did not support the allegation in the declaration; That the plaintiff “had been discharged out of the said custody, fully acquitted and discharged of the said felony.” The presiding judge refused the motion, but with some hesitation, under the cases of Teague vs. Willcs, 3 M’Cord, 461, and of Thomas vs. DeGraffenreid, 2 Nott & M’Cord, 143.
    The jury were charged with the case, but found no verdict, and were discharged by consent of parties.
    The plaintiff then moved for leave to amend the declaration, which was granted, and defendant gave notice of his intention to appeal and renew his motion in the Court of Appeals, for a nonsuit.
    
      J. N. Whitner, for motion. Terry Young, contra.
   Chancellor Johnson.

For the full and perfect understanding of the quotation from ihe count contained in the brief, it will be necessary to premise that it had been before recited in the count, that the plaintiff had been arrested on the said charge of felony, and imprisoned, and kept and detained in prison, until, by the judges'of the Court of Sessions, he “was then and there duly discharged out of the said custody, fully acquitted and discharged of the said supposed offence,” &c. It is evident, therefore, that the first member of the sentence quoted refers to his discharge from imprisonment, which does not necessarily import a discharge from the prosecution, and that the last member of the sentence “fully acquitted and discharged of the said supposed offence,” was intended to express the manner of the discharge. This is the precise case of Thomas vs. DeGraffenreid, 2 N. & M’C., 143 ; and the averment is not supported by proof,, that the plaintiff was discharged on a return of ignoramus by the grand jury on the indictment. “Acquitted” is technically used to express an acquittal on a trial before the petit jury.

In theory, judgment of non-suit is never awarded, except where the plaintiff himself neglects to prosecute his suit, or voluntarily abandons it. He has a right to go before the jury, however slight or irrelevant the evidence in support of his action. But with us, a practice has been introduced, and has been very long in general use, for the court to order anon-suit when the plaintiff wholly fails to prove the allegations in his declaration. No possible injury results to the plaintiff from this practice, for he would not be permitted to retain a verdict unsupported by evidence; and it is well calculated to economise the time of the court, and ought not, therefore, to be abandoned ; but this practice is not impeiative on the court. When the jury is charged with a cause, the judge is not bound to take it away from them and order a non-suit, although the count is not supported by the evidence, and ought never to do so when there is, in his judgment, the slighest evi* dence in support of the plaintiff’s cause.

The matter of amendment was within the discretion of the court — subject, it is true, to the supervision of this court; but amendments are almost universally allowed, when they do not surprise, hinder, or delay the opposite party; and these qualifications have not been violated here. The mis-trial did not alter the rights of the parties; the case stands now exactly as if no attempt to try it had ever been made.

Motion dismissed.

Richardson, Harper, Johnston, Evans, and O’Neall, CC. and JJ. concurred.  