
    FROWMAN, &c. vs. SMITH AND WIFE.
    
      From the Garrard Quarter Session Court.
    
    A person discharged from a prosecution for felony, without a trial on the merits, cannot, in an action for malicious prosecution, require proof of probable cause, until he shows express malice.
   Opinion of the Court, by

Ch. J. Muter.

THE presentment against Mary Smith having been found by the grand jury, and she having been discharged therefrom, for reasons which appeared to the court, and not acquitted of the charge contained therein, by a trial thereof on the merits, the court is of opinion that, on the trial of the action for a malicious prosecution, it was not incumbent on the defendants to show a probable cause, but that it was essential to the support of the plaintiffs’ action, that they should have proved express malice in the defendants; which not having been done, judgment reversed with costs.  