#### GEORGE W. SWARTWOUT *v.*WILLIAM DICKELMAN.

*Malicious prosecution*— What *determination of the prosecution essential, to justify am, action for.*

In an action for malicious prosecution, it appeared that, on defendant’s complaint, plaintiff had been committed to jail by a justice of the peace to await the action of the grand jury ; that, before the grand jury met, he was discharged from, jail under a writ of *habeas corpus,*whereupon the action was brought. *Held,,*that such discharge was not a determination of plaintiff’s innocence ; that the prosecution was not determined until the grand jury met and the case was presented and ignored, or the plaintiff failed to prosecute the proceedings.

Exceptions ordered to be heard in the first instance at General Term, after a verdict for $100 in favor of the plaintiff at the Sullivan county Circuit.

The action was brought for alleged malicious prosecution of the plaintiff before a justice of the peace, on the complaint of the defendant that the plaintiff had been guilty of the offense of grand larceny.

The complaint was made before the justice on February *25,1876.*A warrant was, thereupon, issued for the plaintiff’s arrest; he was arrested', examined before the justice, and, on' default of bail, committed to the jail of Sullivan county for the space of fifty days —■ he having been committed to await the action of the grand jury. Before any grand jury had been in session in Sullivan county, and on April 15,1816, plaintiff was discharged from imprisonment upon a writ of *habeas corpus*by the judge of Sullivan county. Thereafter, this action was commenced, on the trial of which plaintiff recovered a verdict of $100; the defendant moved for a nonsuit *359before tbe submission of tbe case to tbe jury, on tbe ground that it did not appear that the prosecution complained of bad terminated favorably to tbe plaintiff at tbe time of tbe commencement of tbis action, which motion was denied.

*Stewa/rt <& Read,*for tbe plaintiff.

*T. F. Bush,*for tbe defendant.

Boardman, J.:

Upon tbe complaint of defendant tbe plaintiff was arrested for grand larceny, and, after tbe examination before tbe justice, was held and committed to jail for want of bail. Afterwards, and before any grand jury bad been in session in tbe county, the plaintiff was discharged from bis imprisonment, upon *habeas corpus*issued by tbe county judge. Tbe reason for tbe discharge from custody does not appear. Two days thereafter tbis action was commenced. Tbe crime charged was not cognizable by tbe justice. All be could do was to take bis examination and bold him for the action of tbe next grand jury. That was done. Tbe plaintiff was discharged from custody, but that was not a determination that be was innocent of tbe offense charged against him. The prosecution was not thereby determined in plaintiff’s favor, or determined at all, so far as appears by tbe case made. Until tbe grand jury met, and tbe ease was presented and ignored, or tbe complainant failed to prosecute, tbe proceeding initiated before tbe justice was not ended. *(Bacon*v. *Townsend,*6 Barb., 426; *Clark*v. *Cleveland,*6 Hill, 344 ; *Thomason*v. *Demotte,*9 Abb., 242; 2 Green. on Evidence, § 452.)

We conclude, therefore, from the exceptions before us, that tbe learned judge erred in not granting the nonsuit moved for at tbe close of tbe case, upon tbe ground that tbe proceedings and prosecution bad not been terminated so as to allow this action to be brought.

The motion for a new trial is, therefore, granted, with costs to abide tbe event.

Learned, P. J., and Bookes, J., concurred.

New trial*granted, costs to abide event.