Eason v. Westbrook, 6 N.C. 329, 2 Mur. 329 (1818)

July 1818 · Supreme Court of North Carolina
6 N.C. 329, 2 Mur. 329
John Eason and wife, v. Henry Westbrook, and Matthew Garland

John Eason and wife, v. Henry Westbrook, and Matthew Garland.

^Fl'om Greene, J

Conspiracy. An action on the case in tlie nature of a conspiracy will lie against one ; or if brought against many, all may be acquitted bu one.

This was an action on the case, in which the plaintiff's charged, that they were the owners of a tract of land lying in Greene county, of great value : that a writ of venditioni exponas issued from Greene county court, from. November form, 181.2, commanding the Sheriff of said county to expose to sale the said tract of land, to satisfy certain sums of money in the said writ mentioned ; that the said writ came to the hands of Henry Westbrook, Sheriff of said county, to be executed ; and that lie disregarding hisduty as Sheriff and contriving to cheat and defraud the Plaintiffs, and To cause the said land to be sold for less than its value, by conspiracy then and there had between the said Henry Westbrook and Matthew' Garland, did on the 10th December, 1812, before the hour of 11 o’clock, A. M. proceed to sell the said laud under the writ áforesaid, he not having advertised the said sale for tlie space of forty days ; and in furtherance of the conspiracy aforesaid, did then and there sell the said land, for a small sum, to the said Matthew Garland ; and in pursuance and affirmance of said sale so fraudulently made, executed a deed in his character of Sheriff of Greene county, to the said Matthew Garland for the said land &c. &c.

The Defendants pleaded the general issue ,* and the jury acquitted Matthew Garland, but convicted Henry Westbrook, and assessed damages to the .Plaintiffs. A rule, for a new trial was obtained on the ground, that the Judge bad instructed the jury, that if they were satisfied from the, evidence., that the Sheriff had not advertised the sale for forty days, he would be liable to the Plaintiffs *330upon the issue, although this irregularity or impropriety of conduct, was not occasioned by any combination or conspiracy with Garland the other Defendcnt, nor pro-by any design to injure the Plaintiffs, The rule was discharged and the Defendant appealed.

Haix, Judge,

delivered the opinion of the Court :

It is said in Fitxherburfs Natura Brevimn, that a writ Of conspiracy for indicting for felony doth not lie, bui against two persons at the least ,* and that both or neither must be found guilty. But a‘ writ of conspiracy for indicting one for trespass or other falsity made, Jieth against one person only, (a) It appears from many adjudged cases !hat an action on the case in the nature of a conspiracy, will lie against one ; or if brought against many, all may be acquitted but one. (b) So that it is no good objection to this action that one has been acquitted, and the other found guilty.

If several persons be made Deferí dan is jointly, where the tort in point of law could not be joint, they may dc-*-mur ; and if a verdict be taken against all, the judgment' ■may be arrested, or reversed on. writ of error, (d) In this case, the declaration charges both Defendants with that, of which only one can be guilty, viz : that the sale of the land was not advertised for forty days. This is a charge that can only bo made against the Sheriff, whose official duty it was, to advertise the sale; and if a verdict had been taken against both, advantage might have been taken of it in either of the ways before mentioned. But a verdict has been taken against the Sheriff only, and the other Defendant has been acquitted. This removes the objection. As in an action against husband and wife,, for that they spoke of the Plaintiff certain slanderous words, the jury found the husband guilty, and the wife not guilty ; the. Plaintiff had judgment. For though the *331adion ought not to be brought against both, and therefore, if the Defendant- had demurred to the declaration, it would have been held bad, yet the verdict cured this error, (d) indeed if the jury in the present case had found both Defendants guilty, the Plaintiff might have entered a nolle 'prosequi against Garland, and taken judgment against Westbrook, (e) Whether the charge of the court was right or not, Westbrook lias no cause of complaint. If wrong, it was only so as to Garland, who cannot complain, as the jury have acquitted him. Let the rule for a new trial be discharged.