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day before yesterday in this case. I was not and falsehood to cover the fraud of releasing bound over to court. I was summoning witnesses for sheriff, and was out all night. During the trial at Wilton I was walking about and trying to keep the crowd off the lawyers and magistrates. I sent my horse home about four o'clock in the afternoon. When the justices put Rogers in my custody on Friday, they told me I could take him and go around with him to see his witnesses and his lawyers, and I could keep him with me. From the time he was arrested and placed in my custody up to the time of the trial, he was never out of my presence. I slept with him every night."

At the close of the defendant's evidence, the court informed the defendant's counsel that, if the defendant's evidence was believed, he was guilty, and the court so charged the jury. Defendant excepted. Verdict of guilty, judgment, and appeal by defendant. In this there was error. The statute (Code 1022) provides that the defendant may "show that such escape was not by his consent or negligence, but that he had used all legal means to prevent the same, and acted with proper care and diligence." The defendant swears that the escape was not with his consent, and that he acted in good faith in trying to prevent it. He testifies that he was told by a number of persons that a crowd was coming from Oxford to lynch the prisoner. It was then night, and, to avoid the lynchers, he concluded not to carry Rogers to Oxford that night, but to conceal him until morning, and for that purpose he took him into a dark wood. There was great excitement at the close of the trial, and he did not summon any of the large and excited crowd to assist him, but did summon others after he left the place of the trial. But his principal object was to conceal him until morning. There had been several lynchings in Granville county, and he believed the report that a crowd was coming from Oxford to lynch Rogers; and when they were attacked, and Rogers taken from him by force, he thought it was the lynchers, and he begged them not to lynch him, but to let him have a fair trial. It was suggested on the argument that what the defendant testified to was not true; that he was playing false; that it was the friends of Rogers who attacked and rescued Rogers for the purpose of liberating him, and not for the purpose of lynching him. Suppose this was so (and we do not say but what there are circumstances tending to show this to be the case); did the court have the right to pass upon this fact and say it was so, or was it not a matter to be passed upon and found by the jury? To sustain the judgment of the court, we would have to hold that the court had the right to try the fact of good faith, of due diligence, and that he had not used due diligence, or that the defendant was in a conspiracy with the friends of Rogers to release him, and did not believe a mob was coming from Oxford to lynch him, but that story was only a sham

him. This may all be so, but they were such facts as a jury must pass upon, and not the court. It cannot be contended that if the defendant acted in good faith; that he believed the report that a crowd was coming from Oxford to lynch Rogers; that, for the purpose of preventing this, he concluded to go into hiding, and not carry Rogers to Oxford that night; and that he and those with him were set upon by a masked, armed force, and the prisoner, Rogers, was captured and taken off, while he was held and ordered to keep quiet under threats of death,-the defendant would be guilty. And to find that this was not so would be to find that the defendant had sworn falsely. This the court had no right to find. Wherever a question of good faith, or of negligence or reasonable care, or the truth or falsity of a witness' evidence, is to be passed upon, it is a matter for the jury, and not for the court. A judge cannot even weigh the evidence. State v. Locke, 77 N. C. 481. Where the trial involves a question of intent, it becomes a question for the jury, and not for the court. State v. Hopkins, 130 N. C. 647, 40 S. E. 973. . It is like finding the felonious intent in a trial for larceny. State v. Coy, 119 N. C. 901, 26 S. E. 120. Where a party is indicted for an assault and battery, the question of excessive force is a question for the jury, and not for the court. State v. Goode, 130 N. C. 651, 41 S. E. 3. In the case of State v. Lewis, 113 N. C. 622, 18 S. E. 69, which was an indictment for escape, the court held that, if the defendant was too sick to give the matter his personal attention, that would excuse him, if he had used due diligence in selecting his deputy who had the prisoner in charge, and these were questions of fact to be found by the jury. There is error. New trial.

SAVAGE v. DAVIS.

(131 N. C. 159)

(Supreme Court of North Carolina. Oct. 14, 1902.)

MALICIOUS PROSECUTION - SET-OFF AND COUNTERCLAIM-PLEADING-REQUESTED

INSTRUCTION-PARTICULAR MALICE.

1. Where, in an action for malicious prosecution and slander, defendant averred that plaintiff on the trial of the warrant admitted that he purchased certain guano, and was chargeable therewith, and that the value thereof was $120, with interest, and that plaintiff was therefore indebted to defendant in that amount, such allegation constituted a sufficient pleading of a set-off against plaintiff's damages, if any, and the fact that the court erroneously stated that the allegation was a counterclaim, though deducting the amount from plaintiff's recovery, was immaterial.

2. In an action for malicious prosecution, a requested instruction that by malice is meant special or particular malice; not general malice, but particular malice against the plaintiff; and that, before plaintiff could recover, he must prove that defendant was prompted by particu

1. See Malicious Prosecution, vol. 33, Cent. Dig.

§§ 59, 60.

lar malice toward him in procuring his arrest, etc., was proper, and its refusal was error. Appeal from superior court, Edgecombe county; Timberlake, Judge.

Action by T. F. Savage against J. A. Davis. From a judgment in favor of plaintiff, both plaintiff and defendant appeal. Reversed.

John L. Bridgers and G. M. T. Fountain, for defendant.

Plaintiff's Appeal.

MONTGOMERY, J. The complaint embraces two causes of action; the first count charging the defendant with a malicious prosecution without probable cause, and the second the slander of the plaintiff by the defendant, growing out of the same transaction. The defendant, in his answer, denies having prosecuted the plaintiff maliciously, and without probable cause, and also denies that he used the slanderous words imputed to him by the plaintiff. The jury answered all the issues in favor of the plaintiff, and assessed his damages on the issue as to the malicious prosecution in the sum of $500, and his damages for injury on account of the slander at nothing. The defendant, in his answer, made the following averment: "That T. F. Savage claimed that he alone purchased the guano on the trial of the said warrant, and was chargeable therewith; that the value thereof is $120, with interest from November 1, 1898, and said plaintiff is therefore indebted to the defendant in said amount." The defendant had arrested and brought before a justice of the peace the plaintiff on a charge of having gotten five tons of guano from him, the defendant, under false pretense. On the trial of the action in the superior court, the plaintiff, denying that he procured the guano under a false pretense, admitted that he had received four tons at the price claimed by the defendant, and his honor, treating the averment as a set-off, though inadvertently calling it a counterclaim, gave judgment for the plaintiff for the $500 against the defendant, less the amount of the four tons of guano, which the plaintiff admitted that he received from the defendant. The plaintiff thereupon demurred ore tenus to that section of the answer which his honor treated as a set-off on the ground that it did not take the cause of action in respect to said counterclaim, and the court had no jurisdiction of the same. The court overruled the demurrer, and rendered a judgment as above set out, and the plaintiff excepted and appealed.

The exception of the plaintiff was not to the pleading of a set-off in an action in tort, but the exception was-First, to the jurisIdiction of the court, the amount of the setoff being less than $200; and, second, to the failure of the defendant to state a cause of action in counterclaim. But it will be seen by reference to that part of the defendant's

answer that a counterclaim was not intended to be, nor was in fact, pleaded. It was only a set-off sufficiently pleaded, and the court committed no error in deducting it from the amount of the plaintiff's recovery. There was, as we have said, no demurrer to the pleading of the set-off in the action. No error.

Defendant's Appeal.

His bonor properly charged that the plaintiff's right to recover on the issue concerning malicious prosecution was dependent upon both malice and want of probable cause on the part of the defendant. In explaining the term "malice" his honor said to the jury: "Whenever want of probable cause is found by the jury, the jury may infer malice therefrom, or not; but there is no presumption of malice, simply an inference which the jury may or may not draw. The plaintiff contends that, in addition to the inference which you may draw from the want of probable cause, he has offered you evidence upon which you should find malice. There is evidence tending to show that on several occasions the defendant said if he was not paid he would put the plaintiff in the penitentiary, and tending to show that he started the prosecution to collect his money. These are circumstances to be considered by you on the question of malice. On the other hand, the defendant denies this evidence, and says he had no malice against the plaintiff; that he honestly believed that he had gotten his guano under false pretenses; and, to guard against error, he employed and consulted counsel. All of these circumstances are to be considered by you as tending to negative malice, and it is your duty to consider them carefully and impartially. Unless you find malice, although you may find want of probable cause, you will answer the issue 'No.' But if you should find both, under the rules of proof laid down as to evidence and law, you will answer the issue 'Yes.' By malice is not necessarily meant that state of mind which must proceed from a spiteful, malignant, and revengeful disposition, but it includes as well that which proceeds from an ill-regulated mind not sufficiently cautious, and recklessly bent on the attainment of some desired end, although it may inflict wanton injury on another." If no other instruction had been requested by the defendant, that charge might be sufficient on the question of malice. But the defendant requested the court to instruct the jury more particularly as follows: "By malice is meant special or particular malice; not general malice, but particular malice against the plaintiff. So, before the plaintiff can ask a verdict at your hand on the first issue, he must show you that the defendant was prompted by particular malice toward him in procuring the warrant complained of in this action, and at the same time did not have reasonable grounds or

probable cause to commence the prosecution." In Brooks v. Jones, 33 N. C. 260, which was an action for malicious prosecution, the court said: "The case, then, as we infer, was intended to present this question: In an action for malicious prosecution, is it sufficient for the plaintiff to show that the defendant, in instituting the prosecution, was influenced by general malice, or must he show that the plaintiff had particular malice against him? His honor thought the plaintiff must show particular malice on the part of the defendant towards him." We concur in this opinion. In actions for libel it is not necessary that the ill will or malice should exist against the plaintiff personally. Gattis v. Kilgo, 128 N. C. 402, 38 S. E. 931. The rule, however, is different in actions for malicious prosecution, as we have seen. Error.

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WRIT OF POSSESSION-TRESPASS IN EXECUTING-RELEASE OF JOINT TRESPASSER-JOINDER OF WIFE IN MORTGAGE.

1. A wife who joins her husband in a mortgage with full covenants, for the purpose, as recited therein, of relinquishing her right of dower and claim to homestead, not having intervened in the action of ejectment brought by the purchaser at the mortgage sale against her husband, cannot maintain trespass for execution of the writ of possession issued on the judgment for plaintiff in ejectment, though, after the giving of the mortgage, she received a deed for an interest in the property from a third person.

2. Release of a sheriff from liability for trespass in executing a writ of possession releases the plaintiff in the writ.

Douglas, J., dissenting in part.

Appeal from superior court, Chatham county; Neal, Judge.

Action by G. B. Burns and wife against J. W. Womble. Judgment for plaintiffs, and defendant appeals. Reversed.

Womack & Hayes and H. A. London, for appellant.

FURCHES, C. J. On the 14th of February, 1888, the plaintiff G. B. Burns made and executed a mortgage to S. T. Womble for the tract of land on which he resided, with full covenants of warranty and seisin, in which the plaintiff Martha, who is the wife of the plaintiff G. B. Burns, united. It is stated in the mortgage that the plaintiff Martha joined in the deed for the purpose of relinquishing her right of dower and claim to homestead. The mortgage contained the usual power of sale upon default of payment, and upon such default the mortgagee sold said land, and the defendant became the purchaser, and took a deed therefor from the mortgagee. Upon the plaintiff's refusing to surrender possession to the defendant, he commenced an action of

ejectment against the plaintiff G. B. Burns in the superior court of Chatham county. In this action for possession the plaintiff therein (the defendant in this action) set forth in his complaint the making of the mortgage to S. T. Womble, the sale and purchase by him, that he is thereby the owner of the land, and demands possession. The defendant (G. B. Burns) answered, admitting the execution of the mortgage as alleged in the complaint, but saying that he had not sufficient knowledge of the facts stated in the second paragraph of the complaint to admit it, and therefore denies the same; and he denied that the plaintiff was the owner of the land mentioned in the mortgage and in the complaint. At May term of said court the case came on for trial upon the issues raised by the complaint and answer, and the court submitted this issue: "Is the plaintiff the owner and entitled to the immediate possession of the land described in the complaint?" and the jury answered, "Yes." And upon this issue being found for the plaintiff, his honor Judge Allen, on motion of plaintiff's counsel, rendered judgment as follows: "It is ordered and adjudged that the plaintiff is the owner and entitled to the immediate possession of the land described in the complaint, and that he recover his costs of the defendant, to be taxed by the clerk." And upon this judgment the clerk of said court issued an execution and writ of possession to the sheriff, in which the following language is used: "You are therefore commanded to satisfy the said judgment by dispossessing the said G. B. Burns and those holding under him, and by placing the said J. W. Womble in possession," etc. This writ was placed in the hands of the sheriff, and he was attempting to execute it when the trespass complained of was committed. It is clear that the sheriff had a duty to perform in discharge of the requirements of his office for which he would have been liable to penalties and damages if he failed in its performance. All he could do was to see that the judgment was regular, and authorized the issuance of the writ, and then to execute the same. Whether the plaintiff G. B. Burns was the owner of the land or not, he had made his deed (the mortgage), in which he alleged and covenanted that he was the owner in fee simple; and he was certainly estopped to deny that he was the owner, and has no right to complain that he has been dispossessed by a judgment of the court and a writ of possession. The wife, the feme plaintiff, was a party to the mortgage, signed and duly executed the same, in which she covenanted that her husband, G. B. Burns, was the fee-simple owner, "and had the right to make" said mortgage. But she now claims that on the 11th of January, 1895, M. T. Burns made her a deed to one undivided fourth of said land, and that she is now the owner thereof. This may be so, but, if it is, the sheriff could not take her word for that, and not discharge the duties of his office in

executing the process of the court. If she was the owner of one-fourth part of this land, or any other part, she had the right to intervene, make herself a party to the action of Womble against her husband, and set up her claims, whatever they are, and have them passed on by the court. Cecil v. Smith, 81 N. C. 285; Taylor v. Apple, 90 N. C. 343; Young v. Greenlee, 82 N. C. 346. Suppose the plaintiff Martha had not gotten a deed from M. T. Burns (dated January 11, 1895), will it be contended that the sheriff would have committed a trespass on the plaintiffs in this action by removing them and their effects from this land in obedience to the execution then in his hands? And the fact that she had a deed (which she did not even show to the sheriff) can make no difference. Suppose that Burns had been' the tenant of A., and Womble had brought his action of ejectment against him, A. would have had the right to intervene and set up his title to the land, and, if he sustained his title, Womble would not have been entitled to a writ of possession. But suppose he sat by, and did not intervene, and Womble recovered judgment declaring that he was the owner and entitled to the immediate possession, would it be contended that A. would be allowed to meet the sheriff on the premises, and defy his authority to dispossess Burns? As A. was not a party, he would not be estopped to bring an action, and assert his title against Womble, if he had any. But he would not be allowed to enforce his claim by preventing the sheriff from executing the process of the court. The plaintiff Martha stands in the same condition as A. would have stood, as it will appear from the cases already cited. The sheriff being authorized to dispossess the plaintiffs, he committed no trespass for which he is liable for damages, unless it be on account of the manner in which he executed the process. And, although the plaintiffs allege that it was done with great violence, the evidence does not seem to sustain that allegation, and, if it did, that matter is not before us, as the plaintiff did not appeal. The right of the plaintiffs to recover against the defendant depends upon the unlawful acts of the sheriff, and, as we are of the opinion that he was authorized to do what he did, the plaintiff's action must fail. But it further appears that the plaintiffs had compromised with the sheriffs Jenkins and Johnson for the alleged trespass for which this action is brought, for which they received $135 from each one of them. This was a discharge of the defendant Womble. A party may have an action against each of several trespassers, but the satisfaction of one judgment is a satisfaction and discharge of all; and a compromise and discharge of one is a discharge of all. Kirkwood v. Miller, 73 Am. Dec. 144, 145, notes, and authorities there cited; Patterson v. Manufacturing Co. (Minn.) 4 L. R. A. 744, 745, notes (s. c. 42 N. W. 926). And this is held to be so although the plaintiff stipulates

that it is not to be a discharge of the others. Ellis v. Bitzer, 2 Ohio, 89, 15 Am. Dec. 534. There is error.

DOUGLAS, J. I concur in the opinion of the court only in so far as it holds that the release of the sheriffs by the plaintiff operated as a release of the defendant. I cannot concur in the remainder of the opinion, either upon reason or authority; nor is it at all necessary to do so for a determination of this case. It may at times create unmerited hardship, but I feel compelled to adhere to the principles laid down by this court in Smith v. Ingram, 130 N. C. 100, 40 S. E. 984. It should be remembered that in the case at bar the plaintiff is, and was at the time of the eviction, a married woman; that she was not a party to the action of ejectment; and that she held possession of the land from which she was evicted as a tenant in common under a title admittedly good, and entirely disconnected from her husband. As is said in the opinion of the court, it is stated in the mortgage that the plaintiff Martha joined in the deed for the purpose of relinquishing her right of dower and claim to homestead. She ac quired one undivided fourth of the land after the execution of the mortgage, which, therefore, could not possibly have been conveyed in the mortgage. To say that a married woman is estopped by any covenants of warranty contained in a deed professedly made for the sole purpose of conveying only her dower and homestead is an extension of the doctrine of "feeding an estoppel," which I am not prepared to accept. Neither can I admit that a married woman can lose her rights of property by failing to intervene in a suit to which the then plaintiff did not see fit to make her a party.

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PREMATURE APPEAL-REFERENCE COUNTERCLAIM ESTOPPEL.

1. Where a referee is appointed to take and state an account after verdict, an appeal before final judgment on the coming in of the referee's report is premature.

2. The fact that a defendant might, had he chosen, have pleaded a counterclaim in a former action against him by the plaintiff, brought for a different cause of action, did not estop defendant to set it up in a subsequent suit. Douglas, J., dissenting.

Appeal from superior court, Richmond county; McNeill, Judge.

Action by W. F. Shankle, survived after his death in the name of Sallie Shankle, administratrix, against Green Whitley. Judg. ment for defendant, and the administratrix appeals. Dismissed.

Jas. A. Lockhart, for appellant. Morrison & Whitlock, for appellee.

2. See Judgment, vol. 30, Cent. Dig. § 1136.

CLARK, J. Upon the issues found by the jury it was necessary to have an account taken, and the cause was referred to a referee to state the account. It was premature to appeal before the final judgment upon the coming in of the report. Blackwell v. McCain, 105 N. C. 460, 11 S. E. 360, and numerous cases there cited. The plaintiff should have merely entered his exception at this stage. Williams v. Walker, 107 N. C. 334, 12 S. E. 43. A distinction must be noted between those cases in which the plea in bar is sustained, or overruled as a matter of law by the judge, whereupon the party may appeal at once, if he so elect (Royster v. Wright, 118 N. C. 155, 24 S. E. 746, and cases there cited; Smith v. City of Goldsboro, 121 N. C. 350, 28 S. E. 479), and cases like this, where the issues arising upon the pleadings have been found by the jury, and the reference is afterwards made to state an account, or ascertain some incidental matter, which becomes necessary before final judgment upon the hearing. Even in the first class of cases it is optional to note an exception or appeal at once. Kerr v. Hicks (at this term) 42 S. E. 532. It may not be improper to say, as the case was fully discussed on the merits, that the defendant was not estopped to set up his counterclaim in this action, because he might, if he had chosen, have pleaded it in a former action against him by the plaintiff, brought for a different cause of action. The pleading of a counterclaim is optional. Woody v. Jordan, 69 N. C. 189; Tobacco Co. v. McElwee, 94 N. C. 425. Appeal dismissed.

DOUGLAS, J. (dissenting). I do not think the appeal is premature.

(131 N. C. 725)

STATE v. FREEMAN. (Supreme Court of North Carolina. Oct. 28, 1902.)

ARSON-THREATS-EVIDENCE-SUFFICIENCY. 1. The only evidence against one on trial for the crime of burning a barn, with live stock.Code, 985 (6),-was threats made by him, with no evidence connecting him with the execution of the threats, or with the offense charged. Held, that the case should have been taken from the jury.

Appeal from superior court, Guilford county; Neal, Judge.

J. L. Freeman was convicted of burning a barn, with live stock, and he appeals. Reversed.

C. M. Stedman and A. W. Cook, for appellant. The Attorney General, for the State.

PER CURIAM. Indictment for burning a barn, with live stock, under Code, § 985 (6). The only evidence against the defendant was threats made by him, without any evidence whatever connecting him with the execution

1. See Arson, vol. 4, Cent. Dig. § 71.

of said threats or with the offense charged. The judge should, as prayed, have withdrawn the case from the jury. State v. Rhodes, 111 N. C. 647, 15 S. E. 1038, is exactly in point. Indeed, the attorney general, with commendable frankness, conceded as much on the argument here. Error.

(131 N. C. 178)

QUEEN CITY PRINTING & PAPER CO. v. MCADEN.

(Supreme Court of North Carolina. Oct. 21, 1902.)

AVOIDING CONTRACT-FALSE REPRESENTA

TIONS-PLEADING EVIDENCE.

1. Evidence, in action on a subscription for stock of plaintiff corporation, held sufficient to show material false representations, inducing defendant to subscribe for stock of plaintiff corporation, known to plaintiff's president and agent, who made them, to be false, and therefore authorizing defendant to avoid the subscription.

2. Defect in an answer expressly alleging all the facts material and necessary to show false representations, making defendant's contract voidable, except that plaintiff knew when the representations were made that they were untrue, is waived by failure to demur as required by Code, § 248, when the answer con tains new matter which on its face does not constitute a defense.

Appeal from superior court, Mecklenburg county; Starbuck, Judge.

Action by Queen City Printing & Paper Company against Henry M. McAden. Judgment for plaintiff. Defendant appeals. Reversed.

This action is brought to recover the amount ($500) subscribed by defendant for 10 shares of stock in plaintiff company. Defendant resisted a recovery upon the grounds (among others not necessary now to be stated or discussed) that plaintiff, through its agent and president, H. A. Murrill, induced the subscription by false representations. Upon the trial the defendant in his own behalf testified that: "Between the 16th and 20th of April, 1900, Mr. Murrill came to me with the subscription list introduced in evidence. He had other papers with him, or at least told me he had, but I did not see them. He told me that he and J. P. Wilson and George B. Hiss and others had been talking about reorganizing the Queen City Printing & Paper Company, and wanted me to help him; that he, J. P. Wilson, E. A. Smith, and George B. Hiss had agreed to take most of the stock, and would take it all, but wanted a few outsiders for their influence, and that George B. Hiss had recommended and sent him to me. He said George B. Hiss would be treasurer of the company, and that George B. Hiss, J. P. Wilson, and E. A. Smith would be large stockholders, and that George B. Hiss would be actively in charge of the financial part of the business. I said to him: 'I don't know anything about your business, but if George B. Hiss is going to

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