Blair v. Horton, 51 N.C. 543, 6 Jones 543 (1859)

Aug. 1859 · Supreme Court of North Carolina

51 N.C. 543, 6 Jones 543

JOHN C. BLAIR v. JOHN HORTON et al.

Where a person was arrested under a warrant from a justice of the peace, and there was a misrecital of the name in the mandatory part of the warrant, but it was recited correctly in the oath, it was Held in an action for a malicious prosecution, brought by the defendant in the warrant.

1 st. That the discrepancy was cured by the correct recital in the first instance.

2nd. That it was competent for the justice, who issued it, to amend it upon the assurance that he intended to write the name correctly.

This was an action on the case, for a malicious prosecution, in suing out a warrant against the plaintiff, for an assault and battery upon the person of Clement Eeid, one of the defendants, tried before Bailey, J., at the last Fall Term of Caldwell Superior Court.

The warrant was issued by J. W. Oouncill, a justice of the peace for the county of Watauga. It is as follows, to wit:

“State of Forth Carolina, Watauga County.

“ To any lawful officer of said county, to execute and return. Whereas, information has this day been made to me, one of the acting justices of the peace, in and for the county aforesaid, on the oath of Clement Eeid, that John 0. Blair, late of said county, on the 13th of December, 1852, did present and shoot at the body of the said Eeid, with force and arms, against the peace and dignity of the State. Ton are, therefore, hereby commanded, in the name of the State, to arrest the body of the said J. O. jBalw, if to be found in your county, and him have before me or some other justice of the peace for said county, to answer the aforesaid charge, and be further dealt with according to law; herein fail not. Given under my hand and seal, this 29th day of December, 1853.”

Signed, J. W. Councill, \_seal.~\

The plaintiff introduced the warrant, for the purpose of showing that he had been arrested under it, and that it had been dismissed by the justice, before whom the cause was tried. The defendant objected to the introduction of this paper-writing, purporting to be a warrant, for that it appeared upon its face, that the oath was made by Reid, that one J. O. Blair, committed the battery upon him ; whereas, the mandatory part of the warrant, commanded the officer to arrest J. C. Balir and not J". C. Blair, and that the action, in its present form, could not be maintained.

J. W. Conucill, the justice who issued the warrant, was examined, and he stated that he intended to write the name J. 0. Blair, where he, by mistake, wrote J. C. Balir. The plaintiff moved to amend the warrant so as to read J. C. Blair instead of J. 0. Balir, this was objected to by the defendants. The Court told the justice of the peace, that he might amend the warrant so as to make it speak the truth, if he intended to write the name eorroctly. The justice then rnpde the amendment so as to make it read J. C. Blair. The 'defendants excepted.

Under the instructions of the Court, the jury found a verdict for the plaintiff, and the defendants appealed to this Court.

Gaither and Awry, for the plaintiff.

Lenoir, for the defendants.

PeausoN, C. J.

The discrepancy produced by the inadver-tauce of putting the letter “1” after the letter “a” instead of 'before it, was cured by the recital of the true name, “John C. Blair, in the oath, and the command to arrest the body of the said “ J. C. Balir,” showing that i.t was intended to bo written “ J. 0. Blair.” So, the matter was immaterial. But this Court is clearly of opinion, that the justice of the peace who issued the warrant, had the right to correct the mistake, with the sanction of his Honor. Hoskins v. Young, 2 Dev. and Bat. Rep. 527, cited on the argument, is notin point.' — • There, the warrant was altered in a material matter, i. e. inserting the name of a third party, by a justice of the peace who had not isu-ed the warrant. There is no error.

Pee OukiaM, Judgment affirmed.