¶1 In actions of this kind the declaration must show a legal determination of the original action ; and here the plaintiff relies on a determination by a dis. continuance and want of prosecution. But the evidence did not support the declaration in that point. For, admitting that the original action could be discontinued by the order not to return the appeal and was thereby ended, yet that order was not given until after the present action, was brought, and there is nothing to give it a relation so as to make it operate legally as a discontinuance from any prior time. This suit was therefore commenced prematurely ; and the judgment must be reversed and a venire de novo awarded.
¶2 Per Curiam. Judgment reversed and venire de novo.