Mitchell v. . Durham , 13 N.C. 538 ( 1830 )

FROM PERSON. A case was made up in the Court below by STRANGE, J., upon a motion for a new trial, which it is unnecessary to state, as Winston, for the defendant, in this Court, moved in arrest of judgment, because the verdict was general, and the third count in the declaration was defective, inasmuch as a deputy is not liable for a non-feasance, the rule being respondentsuperior. For this, he cited Cameron v. Reynolds, Cowp., 403. The instructions to the jury are now out of the case, by the counsel for the defendant moving in arrest of judgment, and thereby abandoning the rule for a new trial.

The ground of the motion in this Court is that the count charging the defendant as deputy sheriff is bad. The case cited in argument, Cameron v.Reynolds, Cowp., 403, besides many others, does undoubtedly show that for a mere non-feasance, without any wrongful act done by the deputy, the action must be against the principal, and not the deputy.

The rule, too, is so perfectly established as not to require an authority that in civil cases (though it is otherwise in criminal), if a general verdict is given on several counts, of which one is bad, there cannot be judgment; because the Court cannot say to which the evidence referred. The plaintiff ought to have withdrawn his evidence on the defective count, or moved the Court to enter the verdict, or to amend it, so as to make it refer to the good parts of the declaration, if the evidence (540) would have justified the Court.

PER CURIAM. Judgment reversed and judgment arrested.

Cited: Jones v. Palmer, 83 N.C. 305.