Kline v. Shuler

• Decision Date: 31 August 1848
• Citation: 49 Am.Dec. 402,8 Ired. 484,30 N.C. 484
• Parties: WILLIAM KLINE v. JOHN SHULER.
• Court: North Carolina Supreme Court

8 Ired. 484

30 N.C. 484

49 Am.Dec. 402

WILLIAM KLINE

v.JOHN SHULER.

Supreme Court of North Carolina.

August Term, 1848.

It is no objection to an action for malicious prosecution, that the party was arrested under a warrant having no seal; nor is it necessary in such an action to shew that the name of the person, who commenced the prosecution, was endorsed on the bill of the indictment as prosecutor.

Appeal from the Superior Court of Law of Macon County, Spring Term, 1848, his Honor Judge BATTLE presiding.

This is an action for maliciously prosecuting the plaintiff and causing him to be indicted for stealing some sheaves of oats from the defendant. Plea not guilty. On the trial the plaintiff gave in evidence a warrant issued against him for the offence by two justices of the peace, which was not under seal, but only signed by them, and the plaintiff further gave evidence, that the defendant made oath that the plaintiff stole the oats, and applied to the magistrates for the warrant; and that the plaintiff was arrested thereon, and, upon examination had, was bound over by the magistrate to Court on the charge and that the warrant and recognizances were dluy returned. The plaintiff further gave in evidence the record of an indictment found for the larceny, and his subsequent trial, and acquital thereon, and also, that the defendant upon the return of the process to Court appeared as a witness against the plaintiff, and was the only one sworn and sent to the grand jury upon the indictment; and that, pending the indictment, the defendant made a bet with another person, that he would convict the plaintiff on the indictment. The counsel for the defendant insisted, that the warrant was void, because it was not under seal, and therefore that the defendant could not be held responsible as the prosecutor on that, and that, for that reason, and because the defendant was not marked on the indictment as the prosecutor, and did not appear to have been a witness on the trial of the plaintiff, there was no evidence that the defendant was the prosecutor of the indictment; and he moved the Court so to instruct the jury. The Court refused the motion; and charged the jury, that the defendant could not avail himself of the want of a seal to the warrant as shewing that he did not cause the plaintiff to be prosecuted and indicted for the larceny; and that upon the warrant and record and the parol evidence, if believed by them, the jury might find, that the defendant was the prosecutor of the indictment if they were satisfied therefrom, that such was the fact. The jury found for the plaintiff, and the defendant appealed from the judgment.

J. W....