#### JOHN HARDIN vs. JOHN BORDERS et al.

Before an action can be sustained for a malicious prosecution or arrest, it must appear that the prosecution was legally determined; and if there he no evidence of the fact, it is not error in the Court to refuse to leave it to the jury to find whether or not the prosecution was determined.

This was an action on the case for a malicious prosecution, tried at Rutherford, on the last circuit, before his honor Judge Hall.

It appeared, upon the trial, that the plaintiff was arrested and taken before two justices of the peace, under a State’s Warrant, which charged him with feloniously stealing a negro man named John, the property of the prosecutor; that the two justices heard the case, and adjudged the plaintiff to be guilty of the charge — issued a mittimus, and placed him in the custody of the officer to be carried to jail; that the *144plaintiff then broke custody, and it did not appear that he had ev6r been legally discharged from the prosecution for the said felony, by the magistrates or by proclamation in open court, by the verdict of a jury and order of court, although the papers in the cause were all returned to court. His Honor being of opinion that the plaintiff had failed to shew a legal discharge from the prosecution for the ielony, he was non-suited; and afterwards moved to set aside the nonsuit, and to have a new trial granted, upon the ground that the court had erred in the matter of law, and that it ought to have been left to the jury to decide whether the plaintiff had been discharged by the magistrates or not. This motion was overruled, and the plaintiff appealed.

No counsel appeared for either party in this Court.

Daniel, Judge,

after stating the case as above, proceeded as follows: There was no evidence in the case to be left to the jury that the justices had discharged the plaintiff; but the evidence was directly the other way, that they had convicted him, and committed him to jail. Before the plaintiff could support his action for a malicious prosecution or arrest, it-must appear that the prosecution was legally determined. Hunter vs. French, Will’s Rep. 517—Morgan vs. Hughs, 2 Term Rep. 225—Fisher vs. Bristow, Doug. Rep. 215. In this case, the plaintiff did not shew any legal determination of the proceedings on said warrant. -The judgment must be affirmed.

Per Curiam. Judgment affirmed.