The opinion
Shaw, C. J.
In this action for a malicious prosecution, for an alleged false and groundless prosecution of the plaintiff by the defendant, by procuring him to be indicted for a nuisance, the plaintiff alleges in his declaration that said prosecution was terminated by a nolle prosequi. To this, the defendant has demurred generally.
We have so recently decided, in a case attracting considerable interest, that an action for a malicious prosecution in *483 causing the plaintiff to be indicted, will not lie, when the discharge from such indictment has been by nolle prosequi, that it seems hardly necessary to do more than refer to the case of Parker v. Farley, 10 Cush. 279 . But we have examined the cases cited by the plaintiff’s counsel, and instead of being opposed to that decision, we think they confirm it. In Morgan v. Hughes, 2 T. R. 231, Buller, J. says : “ Saying that the plaintiff was discharged ’ is not sufficient; it is not equal to the word ‘ acquitted.’ When this word is used, it must be understood in the legal sense, namely, by a jury on the trial.” In Wickes v. Fentham, 4 T. R. 247, there was an acquittal by the jury, though it was founded on a defect in the indictment. In Pippet v. Hearn, 5 Barn. & Aid. 634, there had been an acquittal by the jury, and the question of discharge by a nolle prosequi did not arise. Secor v. Babcock, 2 Johns. 203 , was a case where the magistrate had power finally to acquit and discharge, and did discharge the plaintiff, so that there was no indictment, nor had even a complaint been laid before the grand jury. The cases are summed up, and the doctrine is thus stated in 2 Stark. Ev. (Metcalf’s ed.) 490: “It must appear that the plaintiff was acquitted of the charge; it is not sufficient to prove that the proceeding was stayed by the nol. pros, of the attorney general.”
Demurrer sustained.