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lish a domicil or residence. But the intention to 36 Am. Rep. 216; Fry's Election case, 71 Penn. St. remain only so long as a student, or only because 302; S. C., 10 Am. Rep. 698.” a student, is not sufficient. The intention must be, not to make the place a home temporarily, not a mere student's home, a home while a student, but to
OLD CASES REVIVED. make an
ctual, real, permanent home there; such a real and permanent home there as he might have THE TRUE STORY OF OPHELIA, OR THE DEATH OF elsewhere. The intention must not be conditioned
Miss STOUT. upon or limited to the duration of the academical ASSING over for the present the period of the course. To constitute a permanent residence, the intention must be to remain for an indefinite period, resque political trials, we find our attention arrested regardless of the length of time the student expects by a case which at the time excited public feeling to remain at the college. He gets no residence be- throughout England to an unusual degree. Had cause a student, but being a student does not pre- it occurred in our own days it would have filled vent his getting a residence otherwise. The pre- the newspapers with sensation, and might even sumption is against a student's right to vote, if he have en deemed worthy of notice in the very comes to college from out of town. Calling it his throes of a presidential election. residence, does not make it so. He may have no At the close of the seventeenth century there right to so regard it. Believing the place to be his dwelt in the little town of Hertford a young home is not enough. There may be no foundation Quaker gentlewoman named Mistress Sarah Stout. for the belief. Swearing that it is his home must | Her means were good, her father, who had amassed not be regarded as sufficient, if the facts are averse considerable wealth, having made her bis sole execto it. Deception or misconstruction should not be utrix, and given her the greater part of his perencouraged. The constitutional provision should sonal estate. She lived with her mother, and be respected. Each case must depend largely upon passed, to all outward appearance, a quiet, happy, its particular facts. The question is not always of retired life. But beneath this veil of humdrum easy solution.
One difficulty is this, that all the monotony a constant struggle was going on bevisible facts may be apparently consistent with either tween the strict principles of the sect in which she theory, — that of a temporary or a permanent home. had been brought up, and which she lacked suffiThe Massachusetts court, in a discussion of the ques- cient strength of mind to break away from, and tion (5 Met. 589), presents such descriptions of fact those impulses toward innocent pleasure and freeas might be of a controlling weight upon the two | dom, natural to a young, well educated girl. The sides of the question, very clearly, in the following few letters written by her which have come down remarks: “If the student has a father living; if he to us are couched in the easy, graceful style of a still remains a member of his father's family; if he refined woman, and we can judge of the repugreturns to pass his vacations; if he is maintained nance with which she received the tirades of a cerand supported by his father; these are strong cir- tain “ Theophilus, a watchman," who on one occacumstances repelling the presumption of a change sion at least preached in her mother's house, and of domicil. So if he have no father living; if he before an audience of some twenty or thirty people have a dwelling house of his own; or real estate of pointedly addressed himself to her backslidings, which he retains the occupation; if he have a mother telling her that “her mother's falling outwardly in or other connection's, with whom he has been before the flesh should be a warning to her that she should accustomed to reside, and to whose family he re- not fall outwardly.” From such “canting stuff,” turns in vacations; if he describes himself of such
as she termed it, she turned with pleasure to the place, and otherwise manifests his intent to continue only congenial society that seems to bave been his domicil there; these are all circumstances to opened to her, that of the Cowpers, a neighboring prove that his domicil is not changed. But if hav- county family. Sir William Cowper and his eldest ing a father or mother, they should remove to the son were members for the borough, which was far town where the college is situated, and he should from being a pocket one, and the steady support still remain a member of the family of the parent; they had received in their election struggles from or if having no parent, or being separated from his Miss Stout's father had been the origin of a friendfather's family, not being maintained or supported ship long since ripened into intimacy. When in by him; or if he has a family of his own, and re- London, whither business connected with her inmoves with them to such town; or by purchase or vestments sometimes called her, she was a welcome lease takes up his permanent abode there, without guest at the house of William Cowper, Jr., and his intending to return to his former domicil ; he de
younger brother Spencer Cowper, both barristers pend on his own property, income or industry for in good and increasing practice. The elder brother support; these are circumstances, more or less con- in fact was a king's counsel, leader of the circuit, clusive, to show a change of domicil, and the acquisi- and afterward, as lord chancellor, played a great tion of a domicil in the town where the college is and honorable part in the public affairs of the nasituated.' The cases generally are of the same tion. (Vide his life in Campbell's well-known Lives tenor. Vanderpælv. O'Hanlon, 53 Iowa, 246; S. C., of the Chancellors.) The younger brother was fre
quently pressed by Miss Stout to stay at her moth- with dirt. These mysterious visitors were traced, er's house when the assizes brought him to Hert- and turned out to be Marson and Stephens, two ford, but he preferred sharing the lodgings of his London attorneys, and one Rogers, a scrivener. brother.
And now the whole town was aflame with an exOn one occasion however, that of the spring As- citement which rapidly spread throughout the kingsizes, 1699, the elder Cowper was detained in town, dom, and to which the political passions, so violent and Spencer, with the natural desire of a young at that epoch, added fuel. The Cowper family barrister to save himself needless expense, accepted stood in the front rank of Whiggism, and were her invitation. Arrived at Hertford he found that consequently, in the opinions of their Tory and his usual lodgings had been kept for him, so that Jacobite opponents, capable of any crime. An unthere was nothing to be done but to take them. fortunate liaison in which William Cowper was inHe dined with the Stouts, explained to them the volved extended its prejudicial effect to his brother, unavoidable disappointment, and returned to their and we may remark in passing, subsequently gave house in the evening for the purpose of paying the Voltaire occasion to assert in his “Philosophical young lady some interest upon an investment he Dictionary " that the chancellor of England both had made for her. As the evening passed on the practiced and defended polygamy! From every mother left the room. About eleven Miss Stout or- side arose an outcry for inquiry, and Spencer Cowdered her maid to warm Mr. Cowper's bed, to per, Marson, Stephens and Rogers were arrested, which he made no objection, and the servant ac- examined before Holt, C. J., and committed for cordingly went upstairs. In a quarter of an hour's trial. Finally on July 16th they were duly artime she heard the front door slam, and after an raigned for murder at the Hertford assizes before uncertain interval spent in dawdling after the man
Baron Hatsell. ner of maidservants, she came down to find the Jones for the prosecution opened his case more parlor empty. Neither Miss Stout nor Mr. Cowper strongly than his subsequent proofs warranted. The returned, but the mother seems to have felt no unexplained movements of Cowper, the position great uneasiness, and like a thundershock came the of the body when found, the unhesitating statenews in the morning that her daughter's body had ments of the medical witnesses, and the strange acbeen found floating in the mill-pond.
tions of the three lesser prisoners however made a On the same day a hurried inquest was held, and heavy case of suspicion, and it is evident that at an open verdict returned. Cowper, without again the commencement of the case the judge was prejuvisiting the mother's house, left the town with the diced against the defense. rest of the bar, and at first the whole matter seemed An initial point of some interest was raised. likely to blow over. But as we all know, tongues The prosecution having challenged certain jurors, in a country town will wag, and it was not long be- Cowper called upon them to show legal cause for fore scandalous stories got afloat affecting the poor their challenges. Jones contended that he had the girl's reputation. Mrs. tout too had her dormant same right of peremptory challenge as the prisonsuspicions roused, when on examination of her ers, but Cowper quoted Hale's Pleas of the Crown, husband's affairs, she found the estate deficient by page 259, and a statute of 33 Edward I, where it is £1,000 of the figure at which she had estimated it. expressly enacted that the king shall not challenge The Quakers loudly protested that it was an impos- without cause, and the judge held with him that sibility that one possessed of “the inner light,” the prosecution had no right of peremptory chalalthough a backslider, should commit suicide, and lenge. Cowper however waived the point, and the the conjoint influence of all these causes led to an jury being sworn, the first witness called was the exhumation of the body on April 28th, at which deceased's maidservant, Sarah Walker. The matesix medical men were present. Five of these un- rial part of her evidence has already been given. hesitatingly agreed that the deceased was not In cross-examination Cowper elicited the fact that drowned, but was dead before being thrown into she had on two previous occasions bought poison the water, and as the dissentient happened to be for her mistress, but she cleared this up by showSir William Cowper's family surgeon, his refusal to ing that it had been used to poison an unruly join in his colleagues' opinion only increased the dog. burden of suspicion. At this point another circum- Next came the witnesses as to the finding of the stance came to light. It appeared that on the very body. Of these there were no less than ten who night of Miss Stout's death three strangers took all agreed that the corpse was floating in water lodgings in the town, and were overheard talking some five feet deep, portions of the dress being of the young lady, one of them saying that she above the surface, and the whole body being only had thrown him over, but a friend of his would be just submerged. The head and right arm were eneven with her by this time. These men were seen tangled in the stakes of the mill-dam, and there in Cowper's company next day, and it further came were various bruises around the neck, but only such out that they had spent the whole of the previous as might easily have been produced by friction afternoon in the town, although they only went to against the wood. No water was in the body, and their lodgings little before midnight, and one of only a little froth oozed from the nostrils. them was then heated with exertion and covered After some minor and irrelevant testimony, five of
the doctors who had assisted at the exhumation pointing out that the whole case amounted merely were called. The body had been found in a re- to suspicion, then dealing with the medical evidence, markable state of preservation, and all agreed with giving a full account of his own actions on the great positiveness that deceased could not have night in question, and attributing the prosecution to been drowned, basing their opinion on the ground the combined malice of the Quakers and of his that if she had come by her death in that manner family's political opponents. He referred to certain her inner parts would have at least some water in letters of the deceased, which he should produce them, and would consequently have putrefied. The and which would afford a key to the whole mystery,
. opinion of Doctor Woodhouse may be taken as protesting however that if he stood there singly in summarizing their united views: "My opinion is the case of his own life he would not do so, but the that no person is drowned by water but he must consideration of the three innocent men arraigned have a great deal of water within him, a great deal with him compelled him to adopt this course. Closof water in the stomach, and some in the lungs." | ing in a somewhat rhetorical strain, he was told by B. Hatsell — “Pray let me ask you a question; the judge “not to flourish too much." some of the witnesses said that if a person be The first batch of bis witnesses were the constable drowned, and lies dead a great while, the inwards and other parish officials present at the taking of will be putrefied – what is your opinion of it?" the body out of the water, but their testimony subDoctor Woodhouse -- “No doubt, my lord !” stantially agreed with that already given for the
As to the point of the floating of the body, which the prosecution alleged was a sure sign of Next came the doctors for the defense, nine Londeath before immersion, the doctors were not so don physicians and the distinguished anatomist positive, but they agreed that they had never met William Cowper, who though bearing the same name with a case of the body of a drowned person float- was no relation to the prisoner. This gentleman ing so soon after death. Upon this the judge re- gave a full expression of the whole process of drownmarked that Doctor Browne “has a learned dis-ing, pointing out the important distinction between course in his 'Vulgar Errors’ upon this subject, those voluntarily and involuntarily drowned. The concerning the floating of dead bodies. I do not latter class, in their struggle for life, will invariably understand it myself, but he bath a whole chapter swallow a considerable amount of water, but the about it."
suicide, keeping his breath for a speedy suffocation, Pat upon the quotation of Vulgar Errors, Edward may, with sufficient resolution, attain his end withClement, an old sailor, stepped into the box and out swallowing any water whatever. As to the varied the proceedings by a narration of his exper- sinking of bodies, he detailed various experiments iences in the battle off Beachy Head when he saw he had made with dogs, with a view to the trial, several thrown overboard during the engagement, resulting in the conclusion that dead bodies necesparticularly one that was his friend and killed by sarily sink if there be no distention to bring them his side, the sum of the whole being that all that up, but that distention may happen either before or were so killed and thrown overboard floated. He after death so that no inference can be drawn from also instanced the well known practice of tying shot the fact of a body floating or sinking. The reason of to the feet of those who are buried at sea. For the fastening weights to those deceased at sea he exreverse fact, he quoted the shipwreck of the Coro- plained to be not so much to sink them, as to prenation, and at the risk of a little irrelevancy we will vent their rising afterward. Another witness, Dr. let the old salt tell his own tale. “ Have you seen a
Crell, being interrupted by the judge whilst refershipwreck ? A. Yes, the Coronation in 1691. I ring to some ancient authors, retorted that he saw no was then belonging to the Duchess, under the com- reason why he should not quote the fathers of his mand of Captain Clement. We looked out and see profession in the case as well as you gentlemen of them taking down their masts; we saw the men the long robe quote Coke or Littleton in others;' walking up and down on the right side and the ship a remark which shows that even so late as the close sink down and they swam up and down like a shoal of the seventeenth century the medical profession of fish one after another; and I see them hover one looked rather to books than experiment for their upon another and see them drop away by scores at knowledge, and had the same odd custom of valuing a time; and there was an account of about nineteen authorities by age, which still prevails amongst that saved themselves, some by boats and others by “the gentlemen of the long robe." swimming; but there was no more saved out of the The defense then called witnesses to prove deship’s complement which was between five hundred ceased's melancholy state of mind, and in this they and six hundred, and the rest I saw sinking down- had great success, more than one person proving right, some twenty at a time.' Clement was that she had expressed an intention of drowning ceeded by another tar, one Richard Gin (most ap- herself and had confessed that she was in love with propriate name for a grog-loving mariner), and ulti- one she could not marry.
This point Cowper mately the prosecution proceeded to the case against clenched home, producing the promised letters, in the other three prisoners, the substance of which which her unfortunate passion for himself was only has already been stated. Here the prosecution rested. too clearly expressed, her last letter, written four
Cowper opened his defense at some length, first days before her death, containing the words “ I
won't fly for it, come life, come death, I am resolved MALICIOUS PROSECUTION-NOL. PROS –PROB never to desert you." As to this also the future
ABLE CAUSE-EVIDENCE. chancellor gave evidence showing that his brother had used all reasonable means to disenchant Miss
WISCONSIN SUPREME COURT, SEPTEMBER 23, 1884. Stout of her unrequited affection.
WOODWORTH V. Mills.* The mystery was now sufficiently solved. Cowper's movements after leaving the house were fully ac
The entry of a nolle prosequi for any reason other than some
irregularity or informality in the information itself is an counted for. His financial relations with the de
end to the prosecution of that case, and unless such noile ceased had not been referred to by the prosecution, is vacated at the same term, the defendant can be further but for the more complete clearing of his name he prosecuted for the same offense, if at all, oply upon a showed that his only dealing of this kind had been
new complaint, arrest, and examination.
Such entry of a nolle prosequi is therefore such a final deterto find a mortgage security for a small sum the in
mination of the action that an action for its malicious terest of which he had paid her on the eventful prosecution may be maintained.
Evidence of the previous good character of the plaintiff is ad. evening. The case against the other three prisoners,
missible as tending to show that such prosecution was consisting in merely loose expressions grossly exag. without probable cause. gerated by ignorant and malevolent witnesses, was And evidence that the defendant had known the plaintiff for
several years before the criminal prosecution was comdissipated, it being clearly proved that they were in
menced raises a presumption that he knew his reputatown on assize business, and the very frankness of tion their conversation with respect to Miss Stout,
If the defendant instigated such prosecution without probable
cause, the fact that the person, who at his instigation whom one of them had previously unsuccessfully
made the criminal complaint, had probable cause to becourted, was inconsistent with their guilt. The ex- lieve it to be true, is no defense. humation, which had placed the lives of the pris- | APPEAL from the Circuit Court, Jackson county. oners in such jeopardy, had had the one good result of establishing the poor girl's chastity, and when the Bleekmann & Bloomingdale and Wm. F. Vilas, for case for the defense was closed there could be no
respondent. doubt what the verdict would be. The judge, a
Johnson & Ainsworth, J. M. Morrow, and S. U. Pin
ney, for appellant. weak, fatuous man, summed up shortly and gener
TAYLOR, J. The respondent brvught an action in ally, excusing himself from going into the details the Circuit Court of Jackson county against the apof the evidence on the score of faintness, and after pellant for malicious prosecution for causing him to half an hour's consideration the jury returned a ver
be arrested upon a charge of graud larceny. The com
plaint alleges that one Daniel T. Hockert made the dict of “not guilty.”
complaint upon which the arrest was made, but charges Thus ended a case which we have very imper- that the defendant maliciously and without probable fectly summarized. Some subsequent proceedings
cause advised and caused the said Hockert to make
such complaint and have the plaintiff arrested. were taken in chancery, the heir suing out a writ of
[Omitting recital of pleadings.] appeal (a procedure abolished by a statute of George l'pon the issues made by the pleadings the parties IV), but they came to nothing and the war of pam- went to trial in the Circuit Court, and before any evi
dence was given on the part of the plaintiff, the dephlets, in which the heated contestants on either side
fendant objected to the reception of any evidence in cooled off their feelings, gradually ceased. Among the case, on the ground that the complaint does not these transient feuilletons, one entitled “A Reply to state facts sufficient to constitute a cause of action the Hertford Letter” is worth noting as contain
The point raised by the learned counsel for the ap
pellant upon this objection is that the complaint fails ing a full and apparently sound examination of the
to show such a termination of the criminal action whole subject of drowning. It may be found in against the plaintiff as authorizes him to maintain an Howell's State Trial's (ed. 1816) vol. 13, p. 1218,
action for malicious prosecutiou against the prosecu
tors of such criminal action. and there too the reader curious for more details
It is not denied by the learned attorney for the remay consult in extenso the whole proceedings upon spondent that it is necessary to show a final determithe trial, occupying more than 140 closely printed fore the action for the malicious prosecution of the
pation of the criminal action against the plaintiff becolumns. He may also, if he pleases, find in the same can be maintained by him. Miller v. Milligan. once famous novel, the “New Atalantis," written by 48 Barb. 30; Pratt v. Page, 18 Wis. 337-344; Winn v. Swift's friend, Mrs. Manley, a malicious presentation Peckham, 42. id. 493-499. It is unnecessary to cite
other authorities to sustain this proposition, as both of the worst hypothesis of the whole affair, Cowper parties admit that such is the rule of law, and the aubeing “ Moses " and Miss Stout “ Zara."
thorities are not in conflict upon that point. But it is
claimed by the learned counsel for the appellant that Spencer Cowper subsequently made a distin
the facts stated in the complaint do not show a final guished mark in life, becoming a judge of the Court termination of the crimival action upon which this of Common Pleas. We are told, and may well be suit is founded, and they rely upon the following au
thorities to sustain their contention : Bacon v. Toune, lieve, that he was ever cautious and merciful in trials 4 Cush. 217; Parker v. Farley, 10 id. 279: Brown v. Lakefor murder, nor was the character of “ Ophelia,” to man, 12 id. 482; Parker v. Huntington, 2 Gray, 124; him, a mere creature of the poet's imagination,
*S, C., 20 N. W. Rep. 728.
Dennehey v. Woodsum, 100 Mass. 195-198; Cardival v. present proceeding which bas been reached by it canSmith, 109 id. 158. These cases, as well as others not be revived." Reg. v. Pickering, 2 Barn. & Adol. cited by the appellant, would seem to hold that the 267; Bowden v. State, 1 Tex. App. 137; Stute v. Shilling, entering of a nolle prosequi by the district attorney, a
10 Iowa, 106 : Com. v. Dowdican, 115 Mass. 133; Britwith the consent and leave of the court, upon the in- tain v. State, 7 Humph. 159; Reg. v. Mitchell, 3 Cox dictment or information for a crime, is not a final de- Crim. Cas. 93; State v. Primm, 61 Mo. 166; Moulton termination of such criminal action, and therefore no v. Beecher, 8 Hun, 100; Reg. V. Allen, 1 Best & S. action for malicious prosecution can be maintained, 850. because it is urged that the defendant may be again In the case last cited, which was decided in 1862, arrested upon such iudictment or information, and Cockburn, C. J., says:
• No instavce has beeu cited, tried, and that upon such trial the accused might be and therefore it may be presumed that none can be convicted, which conviction would be conclusive evi- found, in which, after a nolle prosequi has been entered dence that there was probable cause for the prosecu- by the fiat of the attorney general, this court has tion; and upon this point the learned counsel for the taken upon itself to award fresh process, or has allowed appellant cite the following cases: Whart. Crim. Law, any further proceedings to be taken on the indict$ 513; State v. McNeill, 3 Hawks. 183; Com. v. Wheeler, ment." Crompton, J., says:
“ The nolle prosequi be2 Mass. 172; Tengue v. Wilks, 3 McCord, 461; Smith v. ing on the record, there is an end of this prosecution; Shackleford, 1 Nott & McC. 36; Heyward v. Cuthbert, 4 but the question remains whether that is final or not. McCord, 354; State v. Blackwell, 9 Ala. 79 (N. S.); I rather think however that Mr. Archbold, in his Wortham v. Com., 5 Rand. (Va.) 669; Lindsay v. Com. Practice of the Crown Office, is right when he says 2 Va. Cas. 345; State v. Haskett, 3 Hill (S. C.), 95; U. (p. 62) 'that it has the effect of putting an end to the S. v. Shoemaker, 2 McLean, 114.
prosecution altogether.' It is said that notwithstandIt will be seen by an examination of these authori- ing that the attorney general may interfere in any ties that the question as to whether, after a nolle prosecution in any court in England and stop it, the prosequi had been entered upon an indictment or in- court may afterward award process. Goddard v. formation, the party could be afterward proceeded Smith, 6 Mod. 201, only decided the entry of a nolle against upon the same indictment or information, prosequi is not a decision on the merits of the prosecu. was not the point decided; and if such rule was stated tion. The court in the course of the argument said as the law, it was only incidental to the real question. the attorney general might issue new process upon the All the authorities hold that a nolle prosequi, entered indictment; but as I have said, I rather think the with leave of the court before the jury is impanelled in nolle prosequi puts an end to the prosecution." Blackthe case, is not a bar to a subsequent prosecution for burn, J., gave no opinion on this point. The remarks the same offense upon a new indictment or informa- of the judges above quoted were made in a case where tion, and there are a few cases which hold that the the attorney general had acted without the leave of nolle prosequi may be recalled, and the defendant tried the court. upon the same indictment or information. All that It seems to us very clear that the rule as stated by was decided ju U. S. v. Shoemaker, supra, was that a Mr. Bishop and the judges in the cases above cited nolle prosequi entered on an indictment was not a bar must be the true rule, when the nolle prosequi is ento a subsequent indictinent for the same cause. Such tered upon an indictment for any cause. It it be enwas the fact also in the case of Com. v. Wheeler, supra. tered because the indictment is bad upon its face for In this last case Justice Sewell says: "A nolle prosequi waut of sufficient allegations, either in form or subis often entered by the attorney for the government stance, then there can be no reason for arresting the on discovering some informality in his indictment. I defendant for trial upon such imperfect indictment. consider that it applies to the particular indictment And if the nolle prosqui is entered because there is no only, and not to the offense.” Sedgwick, J., says: "I proof of the guilt of the defeudant, he certainly ought think it has been held that a nolle prosequi is not a bar not to be proceeded against further, and the action, even to the indictment on which it is entered, though though a criminal one, is discontinued for all purposes. I believe this opinion has been since overruled.” Whether in this State, where the information is preBishop in his work on Criminal Procedure, in speak- sented by the attorney for the State after an examinaing of the effect of the entry of a nolle prosequi, says:
tion of the defendant before a justice, and a nolle “We see therefore that a nolle prosequi during trial prosequi is entered because of some imperfection in bars a subsequent prosecutiou for the same offense, the information which renders it bad in law, a new whether on the same or any other indictment. A for- information may not be presented without a new tiori, it does when entered between the verdict aud complaint and examination of the defendant, need sentence. Entered before trial, it and the proceedings
not be determined in this case; as we think it must be it discontinues are no impediment to a subsequent presumed from the evidence in the case that the nolle prosecution for the same offense. It simply puts an prosequi was entered by the district attorney with the end to the particular indictment, count, or part of a leave of the court, because the attorney and the court count to which it is applied, without prejudice to new were satisfied that there was not sufficient proof of proceedings; but the part or whole of the present pro
the defendant's guilt. And when the prosecution is ceeding which has been reached by it cannot be re
discontinued for that reason, or for any other reason vived. In the language of an old case, the king cau- except for some irregularity or informality in the innot afterward proceed in the same suit, but he may
formation itself, such discontinuance puts an end to begin anew.'" See $ 1395. In a note to this section, all further proceedings in that case; and if the dethe learned author refers to some of the oases cited by fendant can be thereafter further prosecuted for the the learned counsel for the appellant in this case, offense charged in the information, it must be upon a which seems to hold that proceedings might be after- new complaint, arrest, and examination. In this view ward had upon the same indictment or information, of the case the entry of the nolle prosequi with the and disapproves what was said upon that question in leave and consent of the court was a final determinathose cases; and cites the following cases to sustain tion of that action, within the meaning of the rule his statement in the text, that "the nolle prosegui laid down for the government of actions for malicious puts an end to the particular indictment, count, or prosecution. part of a count to which it is applied, without preju- In the case of Moulton v. Beecher, above cited, a dice to a new proceeding; but the part or whole of the complaint for malicious prosecution was sustained