Wingate v. . Causey

144 S.E. 530, 196 N.C. 71, 1928 N.C. LEXIS 282

• Court: Supreme Court of North Carolina
• Decided: September 26, 1928
• Status: Published

Opinion

Stacy, C. J.,

after stating the case: We think the evidence offered in defense of plaintiff’s claim was sufficient to carry the case to the jury, and that the court erred in rendering judgment on the defendant’s admission that he issued the check held by plaintiff. The credibility of such evidence, however, is for the jury to determine. Evans v. Cowan, 194 N. C., 273, 139 S. E., 434.

But as it is not alleged that the criminal prosecution, which forms the basis of defendant’s claim for damages for malicious prosecution, terminated in favor of the defendant, there was no error in sustaining the demurrer to the counterclaim. Winkler v. Blowing Rock Lines, 195 N. C., 673, 143 S. E., 213; Carpenter v. Hanes, 167 N. C., 551, 83 S. E., 577. Three things must be alleged and proved in an action for malicious prosecution: (1) malice, (2) want of probable cause, and (3) termination of proceeding upon which the action is based. R. R. v. Hardware Co., 138 N. C., 174, 50 S. E., 571.

Error.