Watson v. . Hilton

Adams, J. We do not interpret the judgment as signifying that the full amount of the recovery may be twice collected from the defendants. *575 The words “and eacb 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 eacb 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.