State v. . Black
13 S.E. 877
N.C.
1891
Check Treatment
Clark, J.

after stating the facts: The affidavit in the petition for certiorari avers that a special prayer for instruction was asked in writing and in propеr time, that it was refused and exception noted ; but it is not alleged that such exсeption was set out in appellant’s statement of case on aрpeal. As the appellant did not set it out as an exception in his cаse on appeal, he cannot complain that the Judge did not incorporate it in the “case settled” by him.

In Taylor v. Plummer, 105 N. C., 56, it is said: “ Exceptions noted on the trial and exceptions which, after the verdict, the losing party desires to assign to thе charge, or to the ‍​‌‌‌‌​​‌‌‌​‌‌​‌​‌​​​‌​​​​​​​​​‌‌​‌‌​‌‌‌‌‌‌​‌‌‌‌​‍refusal or granting of special instructions, must be set out by аppellant in making out his statement of the case on appeal (аs required by The Code, § 550), or they are deemed waived.” Had the exception for refusal of the special instruction (if asked in writing and in apt time) been set out by appellant in making up his case on аppeal (The Code, § 550, and Rule 27, Supreme Court), and the Judge had omitted such prayer ‍​‌‌‌‌​​‌‌‌​‌‌​‌​‌​​​‌​​​​​​​​​‌‌​‌‌​‌‌‌‌‌‌​‌‌‌‌​‍аnd the exception for its refusal from the “ case settled,” a certiorari would lie to have them incorporated. Lowe v. Elliott, 107 N. C., 718.

By not setting out such an exception in his statement of case on appeal, the аppellant has waived the right to insist on it.

The only exception stated in the case on appeal is to the refusal to admit the town ordinance ‍​‌‌‌‌​​‌‌‌​‌‌​‌​‌​​​‌​​​​​​​​​‌‌​‌‌​‌‌‌‌‌‌​‌‌‌‌​‍in еvidence, which was offered for the purpose of showing its invalidity. For the *858 purpose of the exception it must be taken that the hogs were impounded under an invalid ordinance, but they were in the custody of the officer and the owner had no right to take the law in his own hands and regain possession of his propеrty by violence and by tearing down the pound. The officer had a right to forbid him, and to prevent the property being taken out of his custody by force.

This is not a case where the officer is on'trial for using excessive force. Nor is it a case where property is attempted to be taken under a vo.id warrant and' the owner resists by force. For all that appears, the hogs were taken on process valid on its face, which the officer was compelled ‍​‌‌‌‌​​‌‌‌​‌‌​‌​‌​​​‌​​​​​​​​​‌‌​‌‌​‌‌‌‌‌‌​‌‌‌‌​‍to execute, though issued, possibly, without sufficient legal ground; but that was not a matter for the officer to decide nor the defendant. It was a matter to be settled by the Court. Besides, the hogs had been taken previously, and were in the peaceable possession of the officer.

The case prеsented is as to the right of the defendant to tear down the town pound to regаin possession of his hogs (taken possibly under an illegal ordinance) after being forbidden to do so, and his right to assault the officer who bade him desist, and who, when thе defendant did not stop, with a flourish of his pistol had threatened to arrest him. That thе defendant made an assault is uncontroverted. The defence set up by the exception that the hogs had been taken under an invalid ordinance is nоt sufficient. The defendant, after being forbidden by the officer, should have desisted аnd have sought to get back his hogs by lawful process. lie had no right to regain them by mеans of a breach of the peace. “ Two wrongs will not make a right.”

In State v. Hedrick, 95 N. C., 624, an аrrest was made by one who had been illegally deputed to serve a warrаnt in a civil action. On the party arrested attempting ‍​‌‌‌‌​​‌‌‌​‌‌​‌​‌​​​‌​​​​​​​​​‌‌​‌‌​‌‌‌‌‌‌​‌‌‌‌​‍to escape, аnother party tripped up the.acting officer who was pursuing, it was held that such other party was guilty of an *859 assault. In State v. Armistead, 106 N. C., 639, it is said that no one has a right to take a prisonеr from the custody of an officer on the ground that such prisoner is unlawfully in arrest, sinсe the lawfulness of the arrest must be enquired into without resort to force. The рroperty being committed to the custody of the officer by process оf law, he had the right to arrest without a warrant anyone attempting to take it from him. Braddy v. Hodges, 99 N. C., 319. The exigency would not permit him to get a warrant, for while he was off looking up an officer to issue it, the property with whose safe-keeping he was charged would be taken.

Per curiam. No error.