28 N.C. 250 | N.C. | 1846
The defendant was indicted for forcible trespass in seizing a certain mare, and the case presented the following facts:
The indictment charged that the defendant with force and arms, and with a strong hand, unlawfully took and carried away a mare from the possession of one David Miller, against the will of said Miller, who was then and there present forbidding the same. The taking of the mare by the defendant was in August, 1843; and he, then being an officer, had in his hands an execution against Miller for about $4, dated (251) *188 1 August, 1843. The defendant, when he first took hold of the bridle which held the mare (which bridle was also held by Miller), demanded her as the property of his father, but he showed no authority from his father to make such a demand. Miller also claimed the mare as his property; a quarrel ensued between them, and during the dispute the defendant for the first time told Miller that he had an execution against him. The judge charged the jury that if the execution was not used by the defendant in good faith for the purpose of raising the money due under it, but was used as a mere instrument to get possession of the mare for his father, it was not a justification.
The jury found a verdict for the plaintiff, and from the judgment thereon the defendant appealed.
We think that the lawfulness of the seizure did not depend upon what the constable declared, but upon the sufficiency of the authority which he had. S. v. Kirby,
(252) PER CURIAM. Venire de novo.
Cited: Meeds v. Carver,