89 S.E. 1063 | N.C. | 1916
The verdict finds that the defendant "negligently" injured the mule of plaintiff. The allegation in the complaint (97) is that the injury was done "wrongfully, recklessly, and wantonly and after being forbidden by the plaintiff's agent." This allegation of the complaint was denied in the answer, and the issue submitted without exception is, "Did the defendant negligently injure the mule of the plaintiff?" There is no evidence sent up in the record. We must take it, therefore, that the evidence justified the issue. The judgment that an order of arrest should "issue against the person of the *143 defendant" should not have been granted and should be reformed by striking out such order.
Revisal, 727 (1), authorities an arrest and holding to bail, among other cases, "where the action is for an injury to person or character, or for injuring, or for wrongfully taking, detaining, or converting property, real and personal."
Revisal, 625, authorizes and execution against the judgment debtor "if the action be one in which the defendant might have been arrested." In such case the person arrested cannot be discharged after judgment, except "by payment or giving notice and surrender of all property in excess of $50. The Code, sec. 2972 (now Rev., 1920, 1918a); Fertilizer Co. v. Grubbs,
In Dellinger v. Tweed,
The language of Revisal, 727 (1), authorizing arrest and bail "for injury to property," and consequently an execution against the person, Revisal, 625, applies only where the injury was intentional, not where it was merely negligent or accidental. We find no case in (98) which a person has been committed to jail by order of the court and held until he is released upon surrender of his homestead and personal property exemption (Rev., 1918a), where the injury was merely accidental or negligent. The context of Revisal, 727 (1), indicates that the injury must have been intentional. If the issue submitted had *144 conformed to the complaint and had been sustained by the verdict, the judgment should have directed execution to issue against the person.
On the issues submitted and found, the court should have signed the judgment tendered by the defendant, which omitted the order for an execution to issue against the person if the judgment was not paid. The judgment rendered should be modified by striking out that provision. The plaintiff will pay the costs of this appeal, as there is error in the particular excepted to by the appeal.
Judgment modified.
Cited: McKinney v. Patterson,