O'Driscoll v. M'Burney

The opinion of the Court was delivered by Colcock, J. The ease does not admit of the least doubt. This was not a prosecution. There can be no prosecution without an arrest. It is indispensably necessary to support this action, that malice (and that the arrest was without probable cause,) be alleged and proved. 2 Sel. IsF. P. 1051. If a man make an affidavit charging the commission of an offence or crime, but never takes out a warrant, although he may subject himself to an action, he will not be liable to this action.2 But if, by any possibility, it could be considered as a prosecution,3 it was necessary [402] to show that it was at an end ; and the refusal of the grand jury to act on it, would not have been a final termination of it; for the defendant might have applied to another grand jury, who might have thought proper to present the defendant. The motion is dismissed. Nora, Gantt and Johnson, JJ., concurred. RiIOHARDson, J., was absent at the trial of this case. Footnotes [2] 1 Hill, 199 ; 4 MoC. 357. [3] Post. 244.