30 N.C. 516 | N.C. | 1848
The action is for maliciously and without any reasonable or probable cause arresting the plaintiff and holding him to bail on a warrant issued by a justice of the peace. Plea, not guilty. On the trial the case appeared to be this: The defendant sued out a warrant against the plaintiff for a debt of $10.30, and required him to be held to bail thereon. On 30 March, 1846, the constable arrested the plaintiff and returned the warrant. The trial was postponed by the justice to the next day, and the constable then demanded bail from Howell, and, as he was about giving bail, Edwards told the constable he need not require a bond; and, therefore, the latter discharged the plaintiff from custody. On the next day the case was tried and the justice gave judgment for Howell, and Edwards appealed to the County Court. Shortly afterwards the plaintiff brought this suit, and subsequently Edwards directed the magistrate not to return the appeal; and he accordingly withheld it. Upon the evidence, the counsel for the defendant, among several objections, insisted that the action would not lie, because it was commenced before the original suit was determined; and he prayed the court so to instruct the jury. But the court refused the instruction, and informed the jury that the plaintiff might maintain his action, notwithstanding that objection. Verdict and judgment for the plaintiff, and an appeal by the defendant. In actions of this kind the declaration must show a legal determination of the original action; and here the plaintiff relies on a determination by a discontinuance and want of prosecution. But the evidence did not support the declaration in that point; for, admitting that the original action could be discontinued by the order not to return the appeal and was thereby ended, yet that order was not given until after the present action was brought, and there is nothing to give it a relation so as to make it operate legally as a discontinuance from any prior time. This suit was, therefore, commenced prematurely; and the judgment must be reversed, and avenire de novo awarded.
PER CURIAM. Judgment reversed, and venire de novo.
Cited: Johnson v. Finch,
