
    CONSTITUTIONAL COURT, COLUMBIA,
    APRIL, 1807.
    Kelley v. Pickett, and Stokes v. Pickett.
    In the action for malicious prosecution, a copy of the record and acquittal of the party on an indictment for felony, shall not be admitted in evidence, without producing an order of the court which tried the indictment, to authorize the same.
    Motion to set aside nonsuits, ordered by Waties, L, in these cases, in Fairfield district. The actions were for maliciously, falsely, and without probable cause, prosecuting the plaintiffs for felony. The plaintiffs, at the trial, offered in evidence, copies of the indictments preferred against them, at the instance of the defendant, upon which they had been tried, and were acquitted. This evidence was objected to, without shewing that the court, where the acquittal was, had granted copies of the records and acquittals, in order that an action might be brought for malicious prose-cutioft. The presiding judge supported this objection, and the plaintiffs were nonsuited.
    The motion in this court was submitted on the ground that the judge was mistaken, in refusing to admit the records in evidence, in support of these actions, notwithstanding the court, where the acquit, tais were, had not granted copies thereof for that purpose ; and it was contended, that though it may he necessary to obtain an order of court, after acquittal, to take a copy of the indictment and of the acquittal, yet, if the plaintiff can obtain such copy, without such order, or if he can produce the original in evidence, the court upon the trial of the action for malicious prosecution, cannot refuse to give the plaintiff the benefit of it, but must presume that it was ob-Gained properly, and by the consent and order of the court where She plaintiff was acquitted. ■>
    
    
      Note. See 1 Bl. Rep. 385, Morrison V. Kelley. Per Lord Mansfield. Though it be necessary, in order to grohnd an action for a malicious prosecution, where the party has been indicted for felony, to obtain an order of court for a copy of the record, yet the practice is otherwise in case of misdemeanors; and the plaintiff, who had been indicted for keeping a disorderly house, was allowed to give in evidence, to support his action for a malicious prosecution, the original record of his acquittal See 2 Str. 1122. Jordon v. Lewis. Plaintiffand another had been indicted forforgery, and a copy of the indictmeht was granted to •the other only Plaintiff brought malicious prosecution, and offered the copy in evidence, and the order granted was read by way of objection. The chief justice said an order was not necessary to make it evidence, bee Bl. Com 326.
    On a rule to shew cause, it was oi'dered that the plaintiff have leave to inspect the information given to the justice of peace, and to take a copy thereof; and that the justice of peace produce the original for evidence at the trial, and that the constable produce the warrant, &c. See Barnes, 468. 1 Morg. Ess, 247.
   Bay, J.,

delivered the opinion of the whole court, that the non-suits had been properly ordered, and to sustain actions for a malicious prosecution for felony, it is necessary, that Upon acquittal-, the court, in which the prosecution .has been tried, and where the acquittal has taken place, should grant an order, that the party acquitted, should have leave to take a copy of the record and acquittal, in order to entitle the plaintiff to give the same in evidence ; and that it is discretionary in such court to grant or withhold such order ; and that it is usual to deny it, where there has been any, the least probable, ground on which to found, such a prosecution.

Motions discharged.  