O'Driscoll v. M'Burney
Supreme Court of South Carolina
This case was tried before Mr. Justice Oolcock, at Colleton district, Spring term, 1818. This was an action for malicious prosecution. It appeared that the defendant had presented to the grand jury a memorial, complaining of the conduct of the plaintiff, who was a public officer; that it had been '^received by r*gg the grand jury, but not acted upon, and by them returned to the plaintiff *- as clerk of the Court. Upon this a nonsuit was granted.
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This case was tried before Mr. Justice Oolcock, at Colleton district, Spring term, 1818. This was an action for malicious prosecution. It appeared that the defendant had presented to the grand jury a memorial, complaining of the conduct of the plaintiff, who was a public officer; that it had been '^received by r*gg the grand jury, but not acted upon, and by them returned to the plaintiff *- as clerk of the Court. Upon this a nonsuit was granted. A motion was now made to set aside the nonsuit, on the grounds that this was a prosecution, and that it had been shown that it was at an end.
1Opinion of the Court
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…
2Cited by3 opinions
- Cooper v. ArmourU.S. Circuit Court for the District of Northern New York · 1890
- Clemmons v. NicholsonSupreme Court of South Carolina · 1936
- Potter v. CasterlineSupreme Court of New Jersey · 1879