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DEC. 1832. clerk and master's bond is within the act, does not arise in any of these cases, as the first money was received in March 1823, and the last suit was commenced in February. 1829, and no opinion is intended to be intimated upon it.

CABINESS
MARTINA

PER CURIAM.-JUDGMENTS AFFIRMED.

GEORGE E. CABINESS V. THOMAS MARTIN et al.

Probable cause is such a suspicion as would induce a reasonable man to commence a prosecution, and where a witness swore, that a magistrate upon the return of a state warrant, said that he would commit the defendant unless," &c. ; and the magistrate had in fact said he "would bind the defendant over unless," &c.: It was held, that the variance did not constitute probable cause for a prosecution for perjury.

This was an action on the CASE, in which the plaintiff declared against the defendants for maliciously, and without probable cause, prosecuting him for perjury.— Upon not guilty pleaded, the cause was tried before DoNNELL, Judge, at Rutherford, on the last Spring Circuit. The perjury for which the defendants had the plaintif arrested, was alleged to have taken place on the trial of an indictment against the defendants, for a conspiracy to extort money from one Horde; and it appeared that Horde, having been arrested upon a charge of larceny, and brought before the defendant Martin, who was a justice of the peace, had been discharged upon his surrendering a bank note of three dollars to the person who sued out the warrant against him, and also executing to the prosecutor his own promissory note for $8,75. On the trial of the indictment against the defendants, the plaintiff swore, that the defendant Martin, had told Horde that unless he gave his note, and surrendered the bank bill as above mentioned, he would send him to jail. In this, it was alleged the plaintiff swore falsely, and it was contended. that the defendant had said, that unless he, Horde, gave his note, &c. that he should bind him to

CABINESS

v.

MARTIN

appear at court. Much testimony was offered on both DEC. 1832. sides, on the trial, which it is not necessary to state. The presiding judge charged the jury, that if the plaintiff had sworn, on the trial of the indictment against the defendants, that Martin had said he would send Horde to jail, by a mistake, yet if it was false, it amounted to probable cause and justified the defendants in suing out the warrant against him for perjury.

A verdict was returned for the defendants, and the plaintiff appealed.

Gaston, for the plaintiff.

Badger, contra.

DANIEL, Judge, after stating the facts, proceeded as follows:

We are of opinion, that if the facts were such as are contended for by the defendants, they would not make out a probable cause, to authorise their issuing a state's warrant, and prosecuting the plaintiff for perjury. In the case of Munns v. Dupont, (2 Brown Rep. Ap. 65,) Judge Washington in delivering the opinion of the court, asks what is the meaning of probable cause. I un"derstand it to be the existence of circumstances "and facts, sufficiently strong to excite in a reasonable mind, suspicion, that the person charged with having been guilty, was guilty; it is a case of appa"rent guilt, as contradistinguished from real guilt. It "is not essential that there should be positive evidence "at the time the action is commenced; but the guilt "should be so apparent at that time, as would be suffici❝ent ground to induce a rational and prudent man, who "duly regards the rights of otners as well as his own, to "“institute a prosecution; not that he knows the facts ne 66 cessary to insure conviction, but that there are known "to him, sufficient grounds to suspect that the person he "charges was guilty of the offence." The material question in the cause, on the trial of which the plaintiff was alleged to have committed perjury, was, whether the defendants had fraudulently conspired to obtain by illegal means, the money and property of

CABINESS

V.

MARTIN.

DEC. 1832. Horde. In the ascertainment of the guilt or innocence of the defendants, on the indictment for the conspiracy, it was quite immaterial whether the plaintiff swore that the words used by Martin were, that he would send Horde to jail if he did not give up the three dollar bill, and give his note for the balance, or whether he swore that Martin said, he would bind him over to court, if he did not give up the property. Horde had been arrested for laceny, and it was the duty of the justice, before whom the warrant was returned, to have bound him over to court, whether he was willing or unwilling to give up the money, if in the opinion of the justice, the evidence proved him guilty of the charge. But upon the question whether the defendants wished, by their oppressive conduct, to extort money from Horde, which in truth, was the fact that the plaintiff's evidence was offered to establish, the words used by the magistrate in either way, viz: that he would send him to jail, or bind him to court, if he did not deliver the money, would have the same effect. The jury could not have been misled by the variance in the words sworn to by the plaintiff, from those that in fact were spoken by the magistrate. The difference between the words spoken by the magistrate, and the words which the plaintiff swore he made use of, was not sufficient to excite in the minds of the defendants a reasonable suspicion that he had committed perjury. If the justice had said he would bind Horde to court if he did not give up the money, then the money must have been surrendered, or Horde must have gone to jail, if he had been unable to procure bail. We think the court and jury could not have been misled by the variance in the expressions used; and it appears to us, that no rea sonable mind could suspect that the witness was guilty of perjury. We therefore think, that the facts disclosed, did not amount to probable cause, and a new trial should be granted, which is done accordingly.

PER CURIAM.-JUDGMENT REVERSED.

URIAS COLLINS v. MARTIN NALL.

Sheriffs although elected for one year, by the act of 1777, (Rev. c. 118,) hold their office, until the qualification of their successor. Although sheriffs are elected at stated terms of the County Court, they hold their offices, not from the court at which they were elected, to the next court, when an election takes place, but for one year.

This was a petition under the act of 1809, (Rev. c. 773) for damages done to the plaintiff's land, by its being overflown by the defendant's mill-pond. On the trial before SWAIN Judge, on the Spring Circuit of 1831, at Wake, the only question arose upon the validity of a deed, by the sheriff of Wake, for the land overflown. If the deed was valid, the plaintiff had no title, and upon this point, judgment was entered for the plaintiff, subject to the opinion of the court, upon the following facts:

Isaac Lane was elected sheriff of Wake, at the term of the County Court, held on the third Monday of May, A. D. 1815, being the 15th day of the month. At the ensuing sessions, commencing on the third Monday of August, 1815, being the 21st day of the month, Lane qualified as sheriff, according to the appointment made the preceding term. At May session, 1816, being the 20th day of the month, William Hinton was elected sheriff, who at August sessions following, being the 19th day of the month, qualified in pursuance of the appointment, made the preceding term. From May term, 1816, an execution, returnable to the ensuing August term, issued, which came to the hands of Lane, who levied it upon the land in question, and on the 20th of August following, the Tuesday of the County Court, he sold it and executed the deed.

His Honor being of opinion with the defendant, upon these facts, dismissed the petition and the plaintiff appealed.

The Attorney-General for the plaintiff.

W. H. Haywood for the defendant.

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DEC. 1832.

COLLINS

V.

NALL

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RUFFIN, Judge.-An important question was supposed to arise in this case, which upon a closer inspection of the record, is found not to do so. It has been treated as a case in which a person, whose term of office as sheriff, expired on the first day of the term of the court, upon the qualification of his successor, made a sale of land on the second day of the term, on a fieri facias, returnable to the same court. Two defects were alleged to exist in the sale. The first, that it was made too late, even if the sheriff's office had continued. This has been Speight at this

decided otherwise, in Mordecai v.
term, and before in Lanier v. Stone. The second, that

the authority of the sheriff closed with his office. This
last is a nice point, and it is one, which could not be rul-
ed against the applicant, to say the least, without further
consideration and research.

But it turns out, that the objection is not founded in fact. Mr. Lane was still in office, when he made the sale. By the record of the County Court, appended to the transcript filed here, it appears he entered upon his office on the 21st day of August, 1815, and the case states the sale to have been on the 20th day of August, 1816It is true, that the third Monday of August of the former year, was the 21st day of the month; and that the corresponding Monday of the latter year, was the 19th day of the month; and that the new sheriff qualified on this last day. But we do not count the year, from one Monday in the one, to a corresponding Monday in the next; but from one day to another day. The year is made up of so many days-and particularly is this mode of computing required in this case, since the statute has plainly a reference to the chasm, which might occur in the office by the compution from week to week, and has provided for that case. The act of 1777, (Rev. c. 118,) assumes, that a sheriff once appointed is bound to continue at common law until discharged; and enacts that he shall not be compellable to serve "more than one "year, and until the next succeeding County Court. af❝ter the expiration thereof." If the year expire before court, he must serve until court. But if the court shall

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