Markham v. Cob , 1 N.C. 144 ( 1793 )

Jones, J.

In point of law, it seems to me the action does not lie: I deny none of the cases put by my brother Doderidge, but this case differs from those. There were several acts; here is but one. I agree that the party has his election to have trespass or appeal. But here when the jury have found the other guilty of felony, the party shall not be admitted to contradict what they have said upon their oaths, and say it is only a trespass. I rely strongly on this 45 E. 3. F. Coron. 100. A man brings an appeal, and it appears that the offence was only a trespass; yet he shall not be received, in the face of his own writ, to bring trespass. Trespass is invito homine. Felony is invito domino and also animo furandi, which is of a higher nature.

Doderidge, J.

I remain of the same opinion still.

Jones, J.

In 3 E. 3. Tit. Corone and 8. 3 Tit. Corone. If one takes my horse and waves it in the manor of the lord, and afterwards it is found by a verdict that he stole it: the party shall not have trespass.

Whitlock, J and Doderidge, J.

thought the indictment does not take away the action of the party: and the plaintiff here is not to have restitution under the statute. For the statute precisely says attaint per evidence: *But here he is not attainted. Judgment was given on the third point. Noy 82. Roll. 557. Bendl. 185. Jones 147. Entr. 248, 246. 1 Cr. 213, 216. 3 Inst. 215. 2 And. 45. Ow. 69. 1 Leon. 326.