Watson v. . Hilton , 203 N.C. 574 ( 1932 )

This is an action for malicious prosecution. The jury returned the following verdict:

1. Was the plaintiff caused to be arrested and prosecuted by the defendant, J. A. Hilton, maliciously and without probable cause? Answer: Yes.

2. Was the plaintiff caused to be arrested and prosecuted by the defendant, C. R. Hicks, maliciously and without probable cause? Answer: Yes.

3. What damages, if any, is the plaintiff entitled to recover: Answer: $190.

It was thereupon adjudged that the plaintiff recover of the defendants "and each of them" the sum of $190 and costs, and that upon failure to pay the judgment and the return of an execution unsatisfied, execution issue against the person of the defendants, as provided by law. The defendants excepted and appealed. We do not interpret the judgment as signifying that the full amount of the recovery may be twice collected from the defendants. The words "and each of them" simply indicate the joint and several character of the defendants' liability for the sum assessed as damages. But there is error in that part of the judgment which directs that upon the return of an execution unsatisfied the plaintiff may issue an execution against the person of the defendants. Construing the first and second issues in connection with the charge of the court we find that the answer to each of them may have been and probably was made upon a finding of implied malice. No issue was submitted and no finding appears which shows that the defendants were actuated by express malice. To justify an execution against the person there must be an affirmative finding of express or actual malice. Swain v. Oakley, 190 N.C. 116; Harris v.Singletary, 193 N.C. 583. No execution therefore, can be issued against the person of the defendants. As thus modified the judgment is affirmed.

Modified and affirmed.