This is an action for malicious prosecution and is an *Page 842 appeal from a judgment sustaining a demurrer to the declaration and dismissing the plaintiff's cause of action. The only question presented is whether the prosecution complained of had terminated in the plaintiff's favor. The prosecution was begun before a justice of the peace on an affidavit made by the defendant's agent, and from a conviction in that court an appeal was taken to the county court. The allegation of the declaration as to the termination of the prosecution is as follows: "and in said (county) court, after a full and complete investigation, the County Attorney for said County, the officer charged by law with the duty and responsibility of prosecuting for and on behalf of the State of Mississippi, and without the consent of the plaintiff and over the plaintiff's objection, refused to try said case, but made a motion for a cessat processus, and the said court duly entered said order of cessat processus, a true and correct copy of said order being hereto attached and marked `Exhibit E,' and the plaintiff was released from custody, and charges against him dismissed, and the plaintiff now charges that said criminal prosecution is now at an end and has terminated in the plaintiff's favor, and the defendants, and each of them, have now abandoned any further prosecution of the plaintiff in said proceedings without the plaintiff's consent or procurement." Exhibit E to the declaration, after styling the case, is in the following language: "It is ordered and adjudged that a cessat processus be, and the same is hereby entered in this case."
While there is some conflict in the authorities relative thereto, it is now generally held that among the several methods by which a criminal proceeding may be terminated in favor of the accused are: (1) "the formal abandonment of the proceeding by the public prosecutor," and (2) "a final order of a trial or appellate court." Rest. Torts (Final Draft No. 3), Sec. 1206; 38 C.J. 18, R.C.L. 23; note to Graves v. Scott, 2 L.R.A. (N.S.), 927. All that is necessary is that the particular *Page 843 proceeding complained of shall have been abandoned and the accused discharged, e.g., where "the proceedings were dismissed at the direction of the county prosecuting attorney." Odum v. Tally, 160 Miss. 797, 134 So. 163, 164. That the accused may continue to be liable to further prosecution on the same charge is of no consequence unless such further prosecution is actually begun. Rest. op. cit., Sec. 1206, comment a.
The order disposing of this prosecution was not entered in full as it should have been, but simply recites that "a cessat processus be, and the same is hereby entered in this case." What the draftsman of the order probably had in mind was a cesset processus, (let execution or proceeding stay) which was the designation of "the formal order for a stay of process or proceedings, when the proceedings in court were conducted in Latin." 1 Bouv. Law. Dict., Rawles Third Revision, 448; Smith v. Bowen, 11 Mod. 231, 88 English Reprint 1008, in which case the form of such an order appears, beginning with the words "cesset processus." The English translation of the Latin words "cessat processus" is "the process (or proceeding) ceases." When applied to the order here under consideration, it will read "it is ordered and adjudged that a proceeding ceases, be and the same is hereby entered in this case." When so read, its meaning can only be that the proceeding (the prosecution of the appellant) has terminated. This is made clear by the allegation of the declaration that the appellant was released from custody and, in effect, discharged. The order, therefore, for all practical purposes, is the equivalent of a formal nolle prosequi, the form for which is set forth in 2 Morris's State Cases 1849.
Reversed and remanded.