
    Obadiah Law and Wife vs. Elijah Franks.
    In an action for malicious prosecution, a declaration, alleging that the plaintiff was arrested, entered into recognizance, and was ‘ ‘ afterwards therefrom discharged, and that the prosecution was wholly ended and determined,” is not sustained by proof of acquittal before a petit jury.
    The word “ discharged,” is not equivalent in pleading to “ acquitted,” which term alone expresses a discharge upon trial per pais.
    
    The Court will not hear a motion to amend a declaration after the case has gone to the jury, and is arrested by a nonsuit.
    Before O’Neall, J., at Laurens, Spring Term, 1839.
    This was an action for malicious prosecution. Mrs. Lowe had been arrested, at the instance of defendant, on a charge of trading with a slave, and had entered into recognizance. On the indictment presented the grand jury found a true bill, upon which the prisoner was acquitted before the petit jury. At the close of the plaintiff’s case, (which seemed a strong one,) defendant moved for a nonsuit, because the allegata and prolata did not correspond.
    The declaration set out the information, the arrest and the entering into recognizance, and then averred that the plaintiff was “ afterwards therefrom [from her recognizance] freely and fully discharged, and that the prosecution was wholly ended and determined.” There was no allegation of a true hill found and acquitted before the peti-t jury. Upon this discrepancy the Court was' reluctantly constrained to order a non-suit ; which the plaintiffs moved to set aside,—
    On the ground that the declaration was good and sufficient in law, and was fully supported by the proof. And, in the event of failing on this ground, they asked leave to amend the declaration.
   Curia, per O’Neall, J.

The general rule in pleading is, that there should be “ a clear and distinct statement of the facts which constitute the cause of action or ground of defence, so that they may be understood by the party who is to answer them, by the jury, who are to ascertain the truth of the allegations, and by the Court, who are to give judgment.” (1 Chit. Pl. 236.) The declaration in this case will not stand the test of the rule, being silent in regard to a material part in the history of the facts.

In Morgan vs. Hughes, (2 T. R. 225,) Mr. Justice Buller makes the following remark on this subject (p. 231): “ Saying that the , plaintiff was discharged is not sufficient; it is not equal to the word ‘ acquitted,’ which has a definite meaning. When the word ’■acquitted'1 is used, it must be understood in the legal sense; namely, by a jury on a trial.” The word “ discharged,” then, does not import, with requisite legal precision, a verdict upon trial per pais. Again, (2 Chit. Pl. 302, n. ) it is said that “the proceedings in the original prosecution are to be described as in the record of acquittal;” and it will not be pretended that, in the declaration before us, this rule has been observed. A proper description of acquittal before a petit jury is found in Thomas vs. DeGraffenreid, (2 N. & M‘C, R. 144,) “Legitimo modo acquietatus.” This is precise, and points with accuracy to the mode of discharge which will be given in evidence under it. The motion to set aside the non-suit is dismissed. The motion to amend cannot be allowed: it is too late to ask for that after the case has been before the jury. Glenn vs. M'Cullough, (2 M’C. R. 212.)

Sullivan, for the motion;

Young, contra.

Eichardson, Evans, and Butler, JJ., concurred, Earle, diibitanle ; Gantt, J., absent at the argument. 
      
       New ed. 268.
     
      
       New ed. p. 612 note l.
      
     
      
       See 3 McC. 463.
     
      
       See 7 Rich. 150; 3 Hill, 197; 2 Rich. 145; Post. 67. An.
      
     