34 S.C. 326 | S.C. | 1891
The opinion of the court was delivered by
This being an appeal from an order of his honor, Judge Eraser, sustaining a demurrer upon the ground that the complaint fails to state facts .sufficient to constitute a cause of action, it is proper to state first the substantial allegations of the complaint. The first allegation is as to the copartnership of defendants. 2nd. That plaintiff gave to defendants an agricultural lien on his crops to secure the-payment of supplies to be advanced to him to an amount not exceeding the sum of two hundred and twenty-five dollars. 3rd. That plaintiff has paid the full amount advanced to him. under said lien. 4th. Is practically a repetition of the preceding allegation. 5th. That plaintiff demanded of defendants an itemized account of the advances, which demand was refused. 6th. That defendants demanded of plaintiff that he pay them the further sum of one hundred and twenty-five dollars, which they claimed as the purchase money of a horse; but plaintiff, stating his inability to pay the same, offered to return the horse and pay a reasonable sum for the hire thereof, which offer was not accepted, whereupon defendants applied for and obtained from the clei-k of the court a warrant to enforce the lien, “wrongfully and maliciously, and without probable cause,” making oath that plaintiff was about to sell and dispose of his crop subject to the lien and to defeat the same, and did “wrongfully, maliciously, and with
The Circuit Judge held “that this was an action for the malicious prosecution of a warrant of attachment,” and that the complaint having failed to state “the termination or discharge of said warrant in favor of plaintiff,” the demurrer must be sustained. The plaintiff appeals upon two grounds: 1st. That there was error in holding that it was necessary .to state in the complaint the termination or discharge of said warrant in favor of plaintiff. 2nd. That there was error in holding that there was no such statement in the complaint.
For all that appears in this ease, there may have been, at the time this action was commenced, another proceeding pending to vacate the warrant issued to enforce the agricultural lien, and if so, then it might have happened that in that proceeding the warrant would be held valid, while if this case is allowed to go on, a different result might be reached. While this may not be at all likely, yet it is sufficient to illustrate the propriety of the rule as above announced. These views are supported by authority. See 14 Am. & Eng. Encycl. Law, 43, where the cases are cited. We are not aware of any case in this State in which the question under consideration has been directly decided, but we think our view is recognized in the case of Hogg v. Pinckney (16 S. C., 387), in which the action was for malicious arrest, where it was held that while it was not necessary either to allege or prove the termination of the action in which the provisional remedy, by arrest and bail, was resorted to, yet it seemed to' be recognized that it was necessary to allege and prove the termination of the proceedings under the provisional remedy, which in that case was alleged and proved. So here we think it was necessary to allege and prove that the proceedings under the provisional remedy, by attachment, had terminated in favor of the plaintiff before the commencement of this action.
Nor do we think that the allegation in the complaint that the debt secured by the lien had been fully paid, was sufficient to show that the warrant should be vacated; for it was held by the majority of the court in the case of Baum v. Bell (28 S. C., 201), that on a motion to' vacate a warrant of this kind, the question whether anything was due under the lien was not a pertinent inquiry. The judgment of this court is, that the order of the Circuit Court sustaining the demurrer be affirmed.