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B. 71; Tidd's Pr. 415; Wells on Replevin, sec. 25; Sell. Prac. 160; Davies v. James, 1 T. R. 371; Daggett v. Robins, 2 Blackf. 415. The writ may be employed by the plaintiff for the purpose of removing the plaint without his showing cause; but if the defendant petition for the writ, he must show cause for the reason that the removal of the plaint is in delay of the plaintiff, therefore the cause of removal ought to appear of record: Tidd's Pr. 415; Morris on Replevin, 59; Gilbert on Replevin, 138. If the writ is sued out by the plaintiff, and on or before the return day thereof the defendant does not appear, "the plaintiff having previously filed the writ and return with the filacer, and should give rule with that officer for the defendant to appear, which expires in four days, and upon his non-appearance within that time sue out a pone per vadios, upon which a summons is made out and served upon the defendant, and if he do not appear, the plaintiff on the return of nihil should sue out a distringas:” Tidd's Pr. 417; and if upon this and the succeeding writs a return of nulla bona is had, the plaintiff may sue out a capias and proceed to outlawry: Gilbert on Replevin, 106, 107; but if after the issuance of the recordari and succeeding writs to compel the appearance of the defendant the plaintiff should file a declaration returnable to a term intermediate to that fixed for the return of the recordari, and should also file notice to plead, both the declaration and notice will be set aside for irregularity: Topping v. Fuge, 5 Taunt. 771; S. C., 1 Marsh. 341; Davis v. James, 1 T. R. 371; and after a time set by rule for the plaintiff to declare, the court will not set this rule aside and compel the plaintiff to declare sooner in actions prosecuted by writ of recordari: Craven v. Vasavour, 5 Taunt. 35. When the writ is sued out by the defendant, he must file it and the return with the filacer, and then give a rule for the plaintiff to declare; if this is not done, a judgment of nol. pros. obtained by the defendant will be set aside: Ward v. Creasey, 2 Moore, 642; but after obtaining a rule to declare, he may sign judgment of nol. pros. for want of declaration without demanding it: James v. Moody, 1 H. Black. 281; and he is then entitled to costs: Davies v. James, 1 T. R. 371; the rule to declare may be served at any time before the rule expires, and the plaintiff must declare within four days after service: Edwards v. Dunch, 11 East, 182. With this brief history of the writ and practice connected therewith as administered in England, we come to consider it and the purposes for which it has been used in the United States. An exhaustive search for authorities has failed to disclose that it has been employed in any of the states except North Carolina, where by statute at an early day it was made to answer the purpose of a writ of false judgment, or an appeal to remove proceedings had before justices of the peace to the superior court: Code of N. C., ed. of 1855, p. 74, c. 4, sec. 15. Recordari is the foundation of all proceedings in a case of false judgment: Parker v. Gilreath, 6 Ired. L. 221; and is the proper remedy to review the act of commissioners in making an improper allotment to an insolvent debtor: Ballard v. Waller, 7 Jones L. 84. When the writ is used as a writ of false judgment, it is in the nature of a writ of error, and lies as a matter of right: Webb v. Durham, 7 Ired. L. 130; Leatherwood v. Moody, 3 Id. 129; Plummer v. Wheeler, Busb. L. 472. The plaintiff in the writ must assign his errors, and if not assigned, the writ will be dismissed: Leatherwood v. Moody, supra; Swain v. Smith, 65 N. C. 211; Collins v. Gilbert, Id. 135; Weaver v. Vein Mountain Mining Co., 89 Id. 198; Sossamer v. Hinson, 72 Id. 578; Wilcox v. Spethenson, 71 Id. 409. Recordari, in addition to being used as a writ of false judgment, is sometimes used as a substitute for an appeal, in which case the whole matter is tried de novo in the higher court: Satchwell v. Rispess, 10 Ired. L. 365; Ledbetter v. Osborne, 66 N. C. 379; Cowles

Adm'r v. Hayes, 67 Id. 128; Marsh v. Cohen, 68 Id. 283; Caldwell v. Beatty, 69 Id. 365; but the writ must be applied for as speedy as possible, and any delay after the earliest period in the party's power to apply must be accounted for: Webb v. Durham, 7 Ired. L. 130; and where a defendant had allowed three terms of court to pass before he made application for the writ, the application was denied and the writ dismissed: Boing v. Raleigh & Gaston R. R. Co., 88 N. C. 62. In Elliott v. Jordan, Busb. L. 298, a case where the plaintiff having a claim against the defendant sued out a warrant and placed it in the hands of a constable, with directions to execute it, and have trial thereon, thereby constituting the constable his agent, and after having been notified by the officer of the time set for the trial he failed to attend in consequence of being unwell, and judgment was had against him, of which he was not notified by the officer, it was held that although the constable was guilty of gross negligence in not giving notice of the judgment to his principal in time that an appcal might be taken, still the plaintiff was deprived of his right to the aid of a writ of recordari; but in Critcher v. McCadden, 64 N. C. 262, where it was proved that the petitioner had a meritorious cause of action, but that judgment was given against him in his absence, and without his knowledge, whereby he lost his right of appeal, it was held that under the circumstances he was entitled to a recordari; and again, in Koonce v. Pellettier, 82 Id. 236, where it appeared that a defendant was unable to attend the trial, and was not represented thereat, that a judgment was entered against him, and that he lost his right of appeal, the court held that he was entitled to the writ. In this case, the case of Elliott v. Jordan, supra, is distinguished on the question of agency; and on the ground that a party had lost the right to appeal without any default on his part, and had merits, the writ was granted in Carmer v. Evers, 80 Id. 55; and see also Pugh v. York, 74 Id. 3S3.

Where

a party is deprived of his right of appeal through any fraud or collusion on the part of the justice trying the cause, his remedy is by writ of recordari: Lancaster v. Brady, 4 Jones L. 79; Critcher v. McCadden, supra; but when the party petitioning for the writ fails to show fraud, accident, surprise, or denial of right by the justice, he is not entitled to the writ: Satchwell v. Rispess, 10 Ired. L. 365; and no appeal lies for a refusal on the part of the justice to dismiss a petition for the writ: Perry v. Whittaker, 77 N. C. 102. Before the petitioner is entitled to have the writ issue, he must have paid or tendered to the justice his fees: Steadman v. Jones, 65 Id. 3SS; but their non-payment cannot be urged by a party to the suit as an objection to the docketing of the case upon the return of the writ. This objection can be urged only by the justice: Carmer v. Evers, supra.

JUDGMENT ENTERED BY JUSTICE OF PEACE BY VIRTUE OF STATUTORY AUTHORITY must show that the requirements of the statute have been complied with, and if it fails in this it is void: Beach v. Botsford, 40 Am. Dec. 45, and note 50.

STATE v. HEADRICK.

[3 JONES'S LAW, 375.]

IT IS NOT TRESPASS, AND PARTY CANNOT BE INDICTED FOR REMOVING FENCE, "UNLAWFULLY AND WITHOUT LICENSE," PUT UPON HIS LAND BY ANOTHER, under a statute making it a misdemeanor “if any person shall unlawfully and willfully burn, destroy, pull down, injure, or remove any fence, wall, or other inclosure, or any part thereof, surrounding or about any yard, garden, cultivated field, or pasture."

INDICTMENT for removing a fence. Defendant was lessee of a field, and built a fence on his own land, near the dividing line between his and the prosecutor's land, which was being cultivated. Said prosecutor unlawfully built a fence upon and joined it to the fence upon the land of defendant. This indictment was brought against defendant for removing that part of the prosecutor's fence which was upon defendant's land. Upon the foregoing facts the court below gave judgment for defendant. The attorney general appealed.

J. B. Batchelor, attorney general, for the state.

No counsel appeared for the defendant.

By Court, BATTLE, J. The present indictment is framed upon the one hundred and third section of the thirty-fourth chapter of the revised code, which enacts that "if any person shall unlawfully and willfully burn, destroy, pull down, injure, or remove any fence, wall, or other inclosure, or any part thereof, surrounding or about any yard, garden, cultivated field, or pasture," he shall be deemed to be guilty of a misdemeanor. The special verdict states that the part of the fence for the taking away of which the defendant was indicted was "unlawfully and without license" put upon his land by the prosecutor. How it would be unlawful for the defendant to remove this obstruction from his own land we are unable to conceive. If the prosecutor sustained any damage, it was in consequence of his own wrongful act, and he cannot make the defendant criminally responsible for it. "To subject a person to the penalties of the act in question, he must be guilty of trespass," of which the defendant in the present case certainly was not: State v. Williams, Busb. L. 197. The judgment must be affirmed.

Judgment affirmed.

Whalon v. Blackburn, 14 Wis. 432, is analogous to the principal case, which it cites and indorses in toto as to the doctrine therein evolved concerning the removal, by the owner, of a fence unlawfully erected upon his land.

BROCKWAY V. CRAWFORD,

[3 JONES'S LAW, 433.]

OFFICER OR PRIVATE INDIVIDUAL MAY JUSTIFY ARREST, WITHOUT WARRANT, of a person suspected of having committed a felony, for the purpose of bringing him before a committing magistrate, when such arrest is made without malice and upon probable cause.

TRESPASS vi et armis, for false imprisonment. Verdict for plaintiff. Defendant appealed. The opinion states the facts.

Boyden, for the plaintiff.

Wilson, for the defendant.

By Court, PEARSON, J. It concerns the public that all who commit felonies should be punished; hence compounding a felony is a misdemeanor, and the law encourages every one, as well private citizens as officers, to keep a sharp lookout for the apprehension of felons, by holding them exempt from responsibility for an arrest or prosecution, although the party charged turns out not to be guilty, unless the arrest is made or the prosecution is instituted without probable cause and from malice. In our case, actual malice was not alleged, and the main question was the existence of probable cause.

Had a seal been affixed to the warrant of the justice of the peace, so as to compel the plaintiff to sue in case for a malicious prosecution, from the evidence it is clear there could have been no question that the plaintiff had probable cause; so the amount of the case is, that by the accidental omission, on the part of the magistrate, to affix a seal after signing his name, the defendant must not only pay the cost, but is mulcted in damages to the amount of two hundred dollars, without reference to the question of malice or probable cause. This result cannot be right.

Admit that the want of a seal put the warrant out of the way, and enabled the plaintiff to sue in trespass for the false imprisonment, so as to be entitled, without more showing, to nominal damages, yet surely he could only entitle himself to actual damages, on the ground that the defendant had acted maliciously and without probable cause; so the want of a seal ought only to have affected the form of action whereby to subject the defendant to nominal damages and costs, leaving the merits of the case to turn on the question of probable cause.

In regard to this we take a different view from that entertained by his honor; we think there was some evidence tending to show probable cause. On the twenty-second of February, 1855, a horse, the property of one McLeod, is stolen in the town of Charlotte; thus we have a felony committed; suspicion rests upon a man named Clary, who is seen and heard of no more. A brother of McLeod goes to the Huie mine, eighteen miles from Charlotte, in search of Clary, and is there informed that a man calling himself Brockway had been at the mine about the

time the horse was stolen; "the description of the clothes and the personal appearance resembled Clary very closely." Mr. McLeod was so well satisfied that he was the same man that he pursues on to Salisbury. A reward of one hundred dollars is in the mean time offered for the apprehension of the felon. In Salisbury McLeod meets with the defendant; gives him a full account of the felony; of Clary's being suspected, and having absconded; of the advertisement; of the fact that a man calling himself Brockway (who in dress and personal appearance closely resembled the man Clary) had been at the Huie mine about the time the horse was stolen, and was then, as he learned, at the Rymer mine, about six miles from Salisbury, and asks the defendant to go that night with him and have the said Brockway arrested and brought before a justice of the peace for examination. The defendant hesitates; but Calvin S. Brown arrives from Charlotte; he had procured a description of Clary, and confidently expresses the belief that the plaintiff is the man. Esquire D. A. Davis and Esquire John I. Shaver, upon these pregnant proofs, as they were supposed to be, on all hands, expressed their opinion that Brockway was the man Clary, passing under an alias; whereupon he is arrested that night; but without any kind of oppression or delay he is forthwith brought before a magistrate, and there being no proof that he is the man, is accordingly discharged.

What has the plaintiff (if he be a good citizen) to complain of? A felony is committed, and the felon escapes; he is advertised, and a reward of one hundred dollars is offered for his apprehension. The plaintiff bears a close resemblance both in dress and personal appearance to the suspected person; his associations and fixedness in his position as a member of the community do not place him above the marks of honest suspicion which attach to him because of the close resemblance to the man who figures under the reward of one hundred dollars as a fugitive from justice. Has he cause to complain? Ought he not rather to congratulate himself that he lives in a land where justice is administered with a steady hand? And if occasionally "the wrong passenger is waked up," every good citizen should bear in mind that it was meant for the best, and will work around for the good of the whole.

Samuel v. Paine, 1 Doug. 359; Beckwith v. Philby, 6 Barn. & Cress. 635; Davis v. Russell, 5 Bing. 354, are cases of the highest authority, showing that, upon proof much short of that offered by the defendant in our case, the courts in England hold

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