The opinion
MebexmoN, C. J.
after stating the facts: The first exception is without force, because, although the summons received in evidence was irrelevant, it was harmless, as the defendant admitted by his answer that the summons issued in his action before the Justice of the Peace was issued on the 18th of December, 1888. The complaint so alleged expressly, and the defendant did not in his answer deny the allegation. It was, therefore, to be taken for the purposes of the action as true.
The Code,
§ 268;
Grant
v.
Gooch,
decided at this term, and cases there cited.
Obviously, the evidence of the plaintiff, testifying in his own behalf, embraced by the second exception, was competent. It, in connection with the other evidence, tended to prove the absence of probable cause and the animus of the defendant in suing out the warrant of arrest. It was of slight importance.
The evidence of the defendant, testifying in his own behalf, embraced by" the third exception, was properly rejected. Merely general rumor that the plaintiff had gone to the State of Virginia did not constitute probable cause, nor could it warrant, justify or excuse the action of the defendant in suing out a warrant of arrest. He should have made inquiry of those who would probably know that the rumor was well or ill founded, or have ascertained facts and circumstances such as would prompt a rational, fair and prudent man, having just regard for his own rights, and the like of others, to believe that the facts alleged and made the basis of the application for the warrant of arrest did in fact exist. Mere rumor could give rise to only suspicion and vague con
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jecture. Besides, the warrant of arrest was not asked for upon the ground that the defendant therein had removed to Virginia, but upon the other alleged ground that . he had “removed, disposed of, or secreted, or is about to remove, dispose of, or secrete his property, with intent to defraud his creditors.” The evidence so rejected was irrelevant.
The evidence did not warrant the fourth instruction asked for by the appellant. All the evidence, fairly interpreted, went to prove that the Justice of the Peace before whom the action was tried vacated the order of arrest and discharged the defendant therein, and there was no appeal from the order in this respect, so far as appears. The defendant in the action appealed from the judgment given against him for the amount of the debt demanded, but this did not vacate the order vacating the order of arrest and discharging the defendant therefrom.
Roulhack
v.
Brown,
87 N. C., 1 ;
Pasour
v.
Lineberger,
90 N. C., 159 .
The other exceptions are without merit. The Court was fully warranted in telling the jury that, if they believed the evidence, there was not probable cause. Indeed, there was no evidence, so far as appears, tending to prove the alleged fraudulent disposition by the plaintiff of his property. Manifestly, there was evidence from which the jury might find the issue of fact in respect to the arrest of the plaintiff, with malice and without probable cause, in his favor, and the defendant has no reason to complain of the instruction given in respect to damage.
Affirmed.