Hogg v. Pinckney

Citations

• 16 S.C. 387
• 1882 S.C. LEXIS 10

Syllabus

<p>1. In action for damages for malicious arrest, under bail process, upon allegations of fraud, tlie plaintiff should allege and prove the absence of probable cause, and, failing to do so, the complaint might properly be dismissed on demurrer orally taken at the trial; but such demurrer having been overruled and testimony upon the question of probable cause freely admitted, and a verdict rendered for plaintiff) this court, on appeal, will not disturb the judgment.</p> <p>2. The existence or the want of probable cause in such case, is a mixed question of law and fact.</p> <p>3. While the plaintiff should allege, in his complaint, that the order of arrest had been vacated before the commencement of his action, it was not necessary that he should also allege that the action itself, in which the arrest was made, had been ended.</p> <p>4. A non-suit is only proper when there is no evidence whatever to support the material allegations of the complaint. If there is any evidence at all before the jury upon a fact at issue, the questions of law bearing upon such fact should be raised by requests to charge.</p> <p>5. In actions for malicious arrest, it is not necessary (as in actions for malicious prosecutions) to prove express malice, or malice in fact. Malice in such cases defined.</p> <p>6. It is not necessary, in an action like this, to prove actual damage to the party arrested; deprivation of liberty, and injury to reputation, feelings and person, will support a verdict for the plaintiff.</p> <p>7. There was no error in the charge, that the jury might infer malice from the want of probable cause.</p> <p>8. Upon the question of probable cause, the judge properly left to the jury the facts involved in that question.</p> <p>9. In this trial, so much of the former record as proved the arrest and discharge was proper evidence; the remainder was irrelevant.</p> <p>10. That the party who procured the arrest, acted under the advice of counsel, is a fact to be considered by the