¶1 (dissenting) : This is an action for malicious prosecution. The complaint reads:
“(1) That heretofore, to wit, on the 15th day of January, 1920, the defendant applied for and obtained from C. W. Rouse, Esq., a magistrate in and for the State and county aforesaid, an arrest warrant for the plaintiff, charging the plaintiff with breach of trust with fraudulent intent, in that the plaintiff did receive and collect from one Dave Shackleford a sum of $100 or more on behalf of A. P. Johnson, & Son, and did appropriate the same to his own use with intent to cheat and defraud A. P. Johnson & Son of the same against the form of the statute in such cases made and provided, a copy of the said arrest warrant being attached as a part and parcel of this complaint.
“(2) That under and by virtue of the said arrest warrant the plaintiff was arrested by the sheriff of Georgetown County, and was compelled to appear before the said magistrate and make arrangements for his release in order to avoid being .committed to jail.
*65 “(3) that the defendant willfully, wantonly, maliciously, and recklessly, and without probable cause, took out the said arrest warrant against the plaintiff and caused him to be arrested as aforesaid.
“(4) That on the 31st day of March, 1920, the plaintiff appeared before the said magistrate for a preliminary hearing under the said warrant, this being the date fixed for the hearing by the Said magistrate, and at the said time and place the defendant and all of his witnesses were then and there examined under oath, before the said magistrate, as to the facts constituting the alleged charge of breach of trust with fraudulent intent brought against the plaintiff by the defendant, and, after the defendant and all of his witnesses were duly examined as aforesaid, the defendant wholly failed to make out a probable case against the plaintiff on the alleged charge, and the warrant was dismissed, and the plaintiff discharged and exonerated of and from the said charge, by the said magistrate, for the reason that there was no evidence to substantiate the said charge.
“(5) That the defendant, in order to obtain the said arrest warrant against the plaintiff, made an affidavit charging the plaintiff with having collected from one Dave Shackleford a sum of money over $100, the property of A. P. Johnson & Son, and converted the said money to his own use with the intent to cheat and defraud the said A. P. Johnson & Son.
“(6) That, as plaintiff is informed and believes, the firm of A. P. Johnson & Son consists of the said A. P. Johnson and his son, Victor M. Johnson.
“(7) That, on account of the willful, wanton, malicious, reckless, and high-handed action of the defendant in taking out the said arrest warrant against the plaintiff without probable cause, and compelling the plaintiff to submit to the humiliation, disgrace, and embarrassment of being *66 arrested on the allged charge of breach of trust with fraudulent intent, and, further on account of the plaintiff having to leave his work on several occasions to attend the hearing of the said case, and to employ attorneys to represent him, he has been damaged in the sum of $2,500.
“(8) That the defendant’s action in taking out the said arrest warrant against the plaintiff and thereby causing him to be arrested as aforesaid, without probable cause, was done willfully, wantonly, maliciously, recklessly, and with an intent to harass, embarrass, • annoy, oppress and humiliate the plaintiff.
¶2 To this complaint the defendant demurred, on the ground that the complaint does not state a cause of action, in that it fails to state a final determination of the prosecution. The demurrer was overruled, and the defendant appealed.
¶3 The question is, Does the discharge of the prisoner on a preliminary hearing make such a final determination of the case as to form the basis of an action for malicious prosecution? The question is discussed and decided by the case of Whaley v. Lawton, 57 S. C. 256, at page 259, 35 S. E. 558, at page 559, we find:
“The first question depends upon several subordinate inquiries: First. Whether there was any allegation in the complaint in the first cause of action that the prosecution complained of was ended. The rule is well settled that such an allegation is essential to an action for malicious prosecution, for the very good reason that until the prosecution is ended, it cannot be known whether the prosecution is well founded or not; and, as is said in one of the cases hereinafter cited, 'this absurdity might follow — a plaintiff might recover in the action and yet be afterwards convicted on the original prosecution.’ For this reason the rule also requires that the prosecution must have been legally ended before any action for malicious prosecution can be commenced.”
¶4*67 The dismissal of the defendant on a preliminary hearing does not finally determine the matter, as a new warrant may be issued by another magistrate, or the matter may be carried before the grand jury. A careful reading of Whaley v. Lawton will show that the rule is clearly stated, and Mr. Chief Justice Mclver declined to discuss the difference between the powers of the ministerial and judicial magistrate. The point decided is that the dismissal of a prosecution that is not a final determination of the matter is not the basis for a suit for malicious prosecution.
¶5 The order overruling the demurrer should be reversed, and the demurrer sustained.