Bacon v. Townsend , 6 Barb. 426 ( 1849 )

By the Court, Edwards, J.

The reason 'assigned by the circuit judge, for the nonsuit granted by him, was, that the prosecution was not at an end. It appears by the testimony, that a recognizance was given, conditioned generally for the appearance of the plaintiff in this suit at the then next court of general sessions of the peace for the city and county of New-York, This recognizance contained no reference to any particular charge which had been made against the plaintiff; and there is nothing, except the names of the parties, mentioned in jt, which could authorize the inference that it referred to the offense for whic|£ the plaintiff is alledged to have been maliciously prosecuted. It further appears by the testimony of a deputy clerk of the court of general sessions, that there was an indorsement upon the affidavits taken by the police magistrate before whom the complaint had been made, in these words: “ Bail discharged, April 20th, 1843.” It is contended on the part of the plaintiff that this was sufficient proof that there was an end of the prosecution, before the commencement of this suit.

In the case of Morgan v. Hughes, (2 T. R. 225,) the plaintiff alledged in his declaration that the defendant had maliciously and without probable cause, made a charge of felony against him, before a justice of the peace, who had issued a warrant, under which the plaintiff had been arrested, and compelled to undergo a long imprisonment, until a certain period mentioned, when he was released and discharged from his said imprisonment. To this declaration there was a special demurrer, and one of the causes assigned was that it did not appear by the declaration that the plaintiff had been tried or acquitted, or by due course of law discharged from the supposed felony and charge. Justice Boiler, in giving bis opinion, says, that stating 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 is used, it must be understood in the legal sense, namely, by a jury on the trial. But there are various ways in which a man may be discharged from his imprisonment, without putting an end to the suit.” “ If indeed,” he further says, 11 it had been alledged that the plaintiff had been discharged by the grand jury’s not finding the bill, that would have shown a legal end to the prosecution.”

Sq in this case ; the discharge of the security given for the plaintiff’s appearance, which is in all respects analogous to his discharge from imprisonment, did not show that there was an end of the suit. The bail might have been discharged by a surrender of their principal. And their discharge without such surrender, would not have prevented the grand jury from finding a bill at any time before the offense became barred by the statute of limitations.

Nothing appears from which it can be said that the prosecution was at an end; and the circuit judge was right in granting a nonsuit.

The motion for a new trial must be denied with costs.