It is a familiar rule that, in an action for malicious prosecution, the plaintiff must prove that the prosecution which he alleges to be malicious has been terminated. “The new action must not be brought before the first be determined; because till then it cannot appear that the first was unjust.” Bul. N. P. 12.
Ii the prosecution alleged to be malicious was by complaint to a magistrate, upon which the plaintiff was bound over to appear at the Superior Court, he must show that he has been discharged by the order of that court. Until such discharge, the prosecution is not at an end, but he and his sureties remain liable upon his recognizance.
The dictum of Mr. Justice Buller in Morgan v. Hughes, 2 T. R. 225, that if the accused “ was discharged by the grand jury’s *98not finding the bill, that would have shown a legal end to the prosecution,” does not necessarily imply that the mere fact of the grand jury’s not finding a bill at the term to which the accused is bound over would be an end of the prosecution. It rather implies that the prosecution is not ended unless he is discharged by reason of the grand jury’s finding no bill. See Thomas v. DeGraffenreid, 2 Nott & M’Cord, 143. Under our practice, it cannot be held that the prosecution is at an end, until the accused has been discharged by an order of the court.
In the case at bar, as is to be assumed for the purposes of the question before us, the defendant caused to be instituted before the Police Court of Salem a complaint against the plaintiff, charging her with the crime of larceny. She was adjudged to be probably guilty, and ordered to recognize, with surety, to answer further to the complaint at the October term 1874 of the Superior Court. She thereupon entered into a recognizance to appear at the October term of the Superior Court, and at any subsequent term or terms until the final sentence, decree or order of the Superior Court, and to abide such final sentence, decree or order. To prove that this prosecution was at an end, the plaintiff introduced the records of the Superior Court, by which it appears that, at the said October term, “ the grand jury return ‘ no bill ’ in the following cases,” the list of cases forming part of the return including that of the plaintiff. But the record does not show that the plaintiff was thereupon discharged by the court. The mere return of “ no bill ” by the grand jury did not operate as a legal discharge of the accused, and did not necessarily import that the same or a subsequent grand jury might not find a bill upon the same complaint. The testimony of the district attorney, therefore, that the case was continued before the grand jury by reason of the absence of a witness, did not contradict the record, and was competent.
The evidence in the case shows that, at the time when the plaintiff commenced this suit, the prosecution alleged to be malicious had not been terminated; and it follows that she cannot maintain the action.
According to the terms of the agreed facts, therefore, the entry must be Plaintiff nonsuit.