State v. Morgan.

it brought the sum before mentioned, which was applicable to the prior executions. The Court thereupon told the jury, that the sale was unlawful, as it was the duty of the officer to sell the property in a way to bring the best price, unless the relator consented to a sale in that manner. The jury found against the defendant, and after judgment he appealed.

Francis, for the plaintiff.

J. W. Woodfin, for the defendant.

RUFFIN, C. J. An execution upon a dormant judgment is not void. It is only irregular; and that is an objection to be taken by the defendant in the execution. It does not lie with the sheriff to raise it. The process justifies him, and therefore he is obliged to serve it. The case of Dawson v. Shepperd, 4 Dev. 497, is in point.

The duty of the officer, as to the mode of sale, was correctly stated to the jury, as the counsel for the defendant admits. But he insists, that the Judge erred in undertaking to assume, as a fact, that the articles sold for less, when put up together, than they would, if offered separately. The Court would concur readily in that position, if that point of fact had been disputed on the trial, and the Judge had undertaken to decide it, instead of submitting it as an enquiry for the jury. But it is obvious, that was not the case. The very low price, being but little, if any, more than the value of a good waggon, prevented the defendant from contending before the jury, that more would not have been got, if more competition. had been admitted by putting up the articles separately. Therefore, instead of doing that, he took another position: which was, that some of the creditors selected that mode of sale, and that was sufficient for his justification. So it was, as to those creditors who directed it. But it was not, as to those creditors who were absent, and who suffered prejudice by that manner of selling; and of the

State v. Morgan.

latter class was the relator. But, plainly, that defence yielded, that a different mode of selling might or would have brought a better price, especially as the defendant gave no evidence to the contrary, nor insisted thereon in argument. Although it would have been erroneous not to have left that point to the jury, if it had been asked, or if the defence had not imported, that the defendant did not dispute the matter of fact; yet it is not error in the Judge to have assumed as true, what the defence itself, thus either expressly yielded, or was what plainly to be inferred from it. The objection was not taken at the trial and fairly presented to the Court, but is a mere after-thought and catch at the Judge's words, taken abstractly and without reference to the state of the case in which he used them, and as such it cannot be sustained. As no question was made upon the amount of damages, we take it for granted, they were assessed upon the principle of allowing the relator what he would have received, if the sale had been properly conducted, and after satisfying the prior executions: for he was entitled

to no more.

PER CURIAM.

Judgment affirmed.

SPENCER RICE vs. ROBERT PONDER.

In an action for a malicious prosecution, it is sufficient, in order to prove the prosecution terminated, to shew that the plaintiff was bound to appear at a term of a Court to answer a criminal charge, that he did appear and was not rebound. Much more is it so, when the Solicitor for the State makes an entry on the docket, that he does not think the evidence sufficient to convict.

It is not a sufficient defence to an action for a malicious prosecution, that the defendant really believed the plaintiff guilty of the crime, with which he charged him, but he must prove facts and circumstances, which would induce a reasonable suspicion of the guilt in the minds of unprejudiced and, at least, ordinarily intelligent persons.

The case of Murray v. Lackey, 2 Mur. 369, cited and approved.

Appeal from the Superior Court of Law of Yancy County, at September Term, 1845, his Honor Judge BAILEY presiding.

The action is for a malicious prosecution for a larceny and was tried on not guilty pleaded.

The plaintiff gave in evidence a State's Warrant issued against him and two other persons, upon the application of Ponder, for stealing certain hogs belonging to Ponder, in Yancy County, on which the plaintiff was arrested, and, after examination before a Magistrate, was bound over to the County Court, at February term 1842, to answer the charge. At that term the defendant appeared, but no indictment was preferred against him, nor was he further bound over; but an entry was made on the docket, "that the Solicitor, on examining the witnesses, was of opinion, that the charge could not be sustained the defendants, or two of them, at least, living in Tennessee and the taking not proved to have occurred in Yancy County." The plaintiff then called several witnesses, further to support the issue on his part, who deposed as follows: One Lamras stated, that he was the son-in-law of the defendant, Pond er, and that being in the house of

Rice v. Ponder.

the plaintiff in Tennessee, a few miles from the State line, the plaintiff proposed to sell to him some fat hogs, then in a pen near the house: And that he went to the pen, to look at the hogs and immediately discovered that two of them were in the mark of Ponder, and therefore he asked the plaintiff how he came by them, and the latter replied that he purchased one of them from Balis Moore, and the other from David Metcalf, who had purchased it from said Moore, and that Moore had bought both of them from one William Rice, a brother of the plaintiff. This witness further deposed, that on the same day, he made inquiry of Balis Moore respecting the hogs, and was informed by Moore, that they, with others in the same mark-which the witness then saw-had been purchased by him from William Rice, and that the plaintiff had afterwards purchased the two, in the manner in which the plaintiff had before stated. And this witness further deposed, that he informed the defendant, Ponder, of all these facts, in some short time and before he instituted the prosecution.

The said Balis Moore and David Metcalf also deposed, that Moore had purchased the hogs, with others, from William Rice,and that they were sold by them,respectively, to the plaintiff, as above represented; and that they so told Ponder, before he took out the warrant.

The said William Rice also deposed, that he had formerly lived in this State, but that, several years past, he had moved over the Tennessee line and lived near the plaintiff's, and about ten miles from Ponder's and across the mountains from him-that after getting to Tennessee, he purchased a brood sow, which had a litter of pigs in the winter, all of which were frozen to death but two, and the ears of those were frost bitten so badly,that when he went to mark them, he found he could not put them into the ear-mark, which he had formerly used in this State -and he then marked them, by cropping both ears and slitting the left. He further deposed, that the sow had a

Rice v. Ponder.

second litter some months afterwards, which he put into the same mark, and that, afterwards, being about to remove back to this State, he sold all the stock of hogs, when the pigs were small, to Balis Moore. He further deposed, that shortly after Ponder had heard that hogs in his mark were in the plaintiff's pen, he enquired of the witness whether he had so marked them and sold them to the plaintiff or Moore; and that he, the witness, had then forgotten, that he had marked them in this particular mark, and therefore, informed Ponder, that he had not thus marked them and offered to make oath thereof-but that, at the same time, he further informed the defendant, that he remembered the flesh marks of the pigs that he had in Tennessee, and that he had sold to said Moore. The witness further deposed, that soon afterwards and before the defendant took out the State's Warrant, they went together to the plaintiff's to see the hogs, and there found them in the pen; that he, the witness, then recognized the hogs by their flesh marks, as those which he had sold Moore, and so declared to the defendant Ponder, but that still, he did not recollect having marked them, until the plaintiff, in the presence of the defendant, reminded him of the circumstances, under which the two litters of pigs had been marked, as before stated by him, and that then, he did at once remember the same and immediately informed the defendant that he remembered it, and stated all the particulars to him, as above set forth. Some days after that transaction, the defendant took out the State's Warrant and had the plaintiff arrested.

To maintain the issue on his part, the defendant produced his son, John Ponder, who deposed that he knew his father's stock of hogs and saw the two hogs in the plaintiff's pen, and he believed them to belong to his father, and that they had been missing two falls: And he stated also, that the plaintiff denied having a knowledge of his brother William's stock mark. The defendant also gave in evidence, that, on the trial of the warrant,