5 S.C. 474 | S.C. | 1875
Concurrence Opinion
I concur in the order of the Court. In my judgment, however, the motion for a non-suit should have prevailed. This is admitted in the opinion, which declares that the plaintiffs
Lead Opinion
The opinion of the Court was delivered by
The issue in this action must be disposed of under the rule governing the former action of case in the nature of malicious prosecution. In actions of that class it was necessary to prove express malice and actual damage.—Frierson vs. Hewitt, 2 Hill, 499. In this respect they differed from the technical action of malicious prosecution, in which the plaintiff was bound merely to prove want of probable cause, and the law presumed both malice and damages from such fact of want of probable cause.—Frierson vs. Hewitt.
The plaintiffs should have been non-suited. The evidence not only does not tend to show malice, but goes far to show that the defendant had probable ground for suspecting the existence of the facts that constituted the substance-of the charge on which the search warrant issued.
As the ground of non-suit was the insufficiency of the evidence adduced to support the issues made by the pleadings, this Court will not dismiss the complaint, but order a new trial.—Wyatt vs. Manufacturing Co., ante.