Ely v. . Davis

*26 MacRae, J. Upon the demurrer ore terms we are to decide whether the complaint states grounds sufficient to constitute a cause of action. After alleging that in 1885 the defendant Davis had brought an action in the Superior Court of Pasquotank County against the plaintiffs, in which it was charged that the said Terry had made false and fraudulent representations with regard to the number of acres in a certain tract of land, and had procured by fraud the omission of a tract of land from a certain deed of partition, and after alleging that said charges were false and malicious, and that defendant Davis was assisted in bringing the said action by the other defendants, the plaintiffs make three distinct averments of damage, upon which they demand judgment, as will appear by reference to articles 5, 6 and 7 of the complaint. This, then, is an action to recover damages for malicious prosecution, and we are met at the threshold with the fact that there is no allegation in the complaint of want of probable cause, nor statement of facts which, if proved, would establish the want of probable cause in the alleged malicious charge of fraud and false representation. This omission is in itself fatal to plaintiffs’ action. In the multiplicity of authority that both malice and want of probable cause must be alleged and proved to sustain such an action, we are content to refer to Williams v. Hunter, 3 Hawks, 545; Kirkham v. Coe, 1 Jones, 423; Hewitt v. Wooten, 7 Jones, 182; Burnett v. Nicholson, 79 N. C., 548; Barfield v. Turner, 101 N. C., 357. We may as well say that the law seems to be settled by the weight of authority, although there are some decisions to the contrary, that an action will not lie for malicious prosecution in a civil suit, unless there was an arrest of the person, or seizure of property, as in attachment proceedings at law or their equivalent in equity, or in the proceedings in bankruptcy, or like cases, where there was some special damage *27 resulting from the action, and which would not necessarily result in all cases of the like kind. In Davis v. Gully, 2 D. & B., 360, it is broadly stated by the eminent Judge who delivered the opinion of the Court, that “an action on the case lies against any person who maliciously, and without probable cause, prosecutes another before any tribunal, and thereby subjects him to an injury, either in his person, property or reputation.” But a careful examination of all the cases in North Carolina has shown the fact that not one has been before this Court, unless the alleged malicious prosecution was in a criminal action, or in the prosecution of some extraordinary remedy on the civil docket, involving the liberty of the person, the seizure of property, injunction, or the like, and consequent special damage. The Legislature has seen fit to provide for the award of ■ costs- to the successful litigant in civil actions, by way of compensation for expenses incurred, and these costs have been held to be the only compensation allowed by law, except in the cases' mentioned above, since the fifty-third year of Henry III. The policy of the law, while encouraging arbitrations and settlements without suit, has ever been to afford fair opportunity to all to have their claims determined in the Courts. To hold it now to be that in every case of failure by the plaintiff to establish his allegation of fraud, there being no special damage resulting therefrom, upon a suggestion of malice and want of probable cause, an action for malicious prosecution would lie against him, would open the flood-gate to a species of litigation hitherto unknown in North Oai’o-lina, the absence of which, up to the present time, indicates that it has not heretofore been recognized. Holding, as we do, with his Honor below, that the demurrer should be sustained and the action dismissed, it is unnecessary that we should examine the other exceptions. Judgment affirmed.