March 8, 1910. The opinion of the Court was delivered by
MR. CHIEF JUSTICE JONES.
These two actions were brought to recover damages for malicious prosecution, and the appeals come from orders sustaining demurrers to the complaints for insufficiency.
The alleged prosecution was based upon the following charge in the warrant: "That at Lancaster Cotton Mills, in the county and State aforesaid, on December 21, 1905, J.B. Aiken and his wife, Sarah Aiken, are removing their goods on which he has a chattel mortgage to the State of North Carolina."
The demurrers were properly sustained under the authority of Whaley v. Lawton, 57 S.C. 256, 35 S.E., 741, which, upon a similar state of facts held that the warrant did not state a criminal offense under section 337 of the Criminal Code, and that a complaint for malicious prosecution must allege that plaintiff has been charged with a criminal offense.
The case does not fall within the rule stated in State v. Rice, 43 S.C. 200, 20 S.E., 986, and State v. Haynes, 74 S.C. 453, 55 S.E., 118, as no disposal of the property was charged. It was not even charged that the property had been removed beyond the limits of the State.
The judgment of the Circuit Court in each case is affirmed.
MR. JUSTICE HYDRICK, disqualified.