Greene County NcArchives Court.....Eason, Vs. Westbrook 1811-18 ************************************************ Copyright. All rights reserved. http://www.usgwarchives.net/copyright.htm http://www.usgwarchives.net/nc/ncfiles.htm ************************************************ File contributed for use in USGenWeb Archives by: Deb Haines http://www.genrecords.net/emailregistry/vols/00003.html#0000719 June 12, 2008, 11:55 pm Source: North Carolina Reports Written: 1811-18 JULY TERM, 1818. JOHN EASON and Wife v. HENRY WESTBROOK and MATTHEW GARLAND. From Greene. Conspiracy. 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. This was an action on the case, in which the plaintiffs 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 Term, 1812, 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 he, disregarding his duty 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 10 December, 1812, before the hour of 11 o'clock A. M., proceed to sell the said land under the writ aforesaid, he not having advertised the said sale for the 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, etc., etc. 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 had 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 upon the issue, although this irregularity or impropriety of conduct was not occasioned by any combination or conspiracy with Garland, the other defendant, nor produced by any design to injure the plaintiffs. The rule was discharged, and the defendant appealed. Hall, J. It is said in Fitzherbert's Natura Brevium that a writ of conspiracy for indicting for felony doth not lie, but 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 lieth against one person only, F. N. B., 116. It appears from many adjudged cases that 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. 1 Saund., 230, Note 4. 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 defendants jointly, where the tort in point of law could not be joint, they may demur; and if a verdict be taken against all, the judgment may be arrested, or reversed on writ of error. 1 Chitty's Pleadings, 74. 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 be 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 action 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. 1 Roll. Abr., 781; 1 Str., 349; 2 Saund., 117, note 2. 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. 1 Wills., 306; 1 Saund., 207, note 2. Whether the charge of the court was right or not, Westbrook has 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. Additional Comments: North Caroline Reports, Vol. 6, Cases Argued and Determined in the Supreme Court of North Carolina, Reported by A.D. Murphey, Annotated by Walter Clark. 1811 to 1813, Inclusive and at July Term, 1818. Reprinted by the State. E.M. Uzzell and Company, State printers and binders, 1910. File at: http://files.usgwarchives.net/nc/greene/court/eason581gwl.txt This file has been created by a form at http://www.genrecords.org/ncfiles/ File size: 5.3 Kb