
    John W. Smith ads. John Shackleford.
    In an action for a malicious prosecution, plaintiff must show the prosecution to he at an end. 
      
    
    Where a noli prosequi is entered on the warrant by the solicitor, but no order of discharge is obtained from the Court, this is not such a termination of the prosecution as will enable the party to maintain an action for malicious prosecution. 
    
    This was an action for malicious prosecution.
    The only evidence offered, to show that the prosecution was ended, was an endorsement made on the back of the warrant, in these words :
    “ On the part of the State. I enter a noli prosequi in this case, March Term, 1815.
    James Ervin, Solicitor, N. 0.”
    
    A motion for a nonsuit was submitted, on the ground, that this evidence would not support the declaration. The Court overruled the motion, and the jury found a verdict for the plaintiff.
    The motion for a nonsuit was now renewed, on the ground, that a noli prosequi is not a determination of a prosecution, and if it were, the evidence offered was insufficient to show that the defendant was discharged, according to the allegation made in the declaration.
    
      Laniel, for the motion. F. JR. Ervin, contra.
    
      
      
        Secor vs. Bacock, 2 John. Rep. 203. Parker vs. Langley, Gilb. oases, L. & E. 168. See the great case of Jones vs. Given, Id. 185, which contains all the law relative to Malicious Prosecutions ; Comw. vs. Wheeler, 2 Mass. T. R. 174 ; Lewis vs. Parrel, 1 Str. 114.
    
    
      
      
        Goddard vs. Smith, 1 Salk. 21, Evans’ Ed. and notes. But the only point necessary in that case, was whether it supported the declaration. In Gilbert’s Rep. 178, a nonsuit was said to be sufficient to support conspiracy.
    
   *The opinion of the Court was delivered by

Colcock, J.

It is requisite, in an action' for a malicious prosecution, to state, that the prosecution is determined, and at an end for until that be determined, it cannot he known whether the prosecution be malicious or not, and this absurdity might follow ; a plaintiff might recover in the action, and yet be afterwards convicted on the original prosecution. (2 Selwyn, 1060.) When a person, charged with an offence, is bound to appear at the Court of Sessions, and does so, he will not be legally discharged, without an express order of the Court, for that purpose obtained. The entry of the solicitor, was not a legal discharge. But if a noli prosequi, can, under any circumstances, be considered such a termination of a prosecution as to enable the party prosecuted to commence this action, it cannot be so considered here for I view this entry as a mere private memorandum of the public officer, neither putting an end'to the prosecution, nor as I have before said, operating as a discharge from the prosecution. It will not be contended, that the solicitor, in this ease, was restricted by this entry, from prosecuting the plaintiff, if on further consideration, and the production of more satisfactory testimony, he had thought proper to do so ; and if not, it follows conclusively that he was not legally discharged from the prosecution, and that the absurdity of his recovery in this action, and being hereafter convicted on the original prosecution, might happen.

I am of opinion that a nonsuit should be ordered. The motion is therefore granted.

Grimke, Nott and Cheves, JJ., concurred. 
      
       2 N. & McC. 143, 55; 3 McC. 461
     
      
       4 McC, 357.
     