(after stating the case): It is clear that the defendant never intended or authorized a warrant to be issued against the plaintiff for perjury. This appears from the evidence of Squire Mitchell, and Murray, the defendant’s agent, The facts stated in the affidavit do.not constitute perjury. The justice was at a loss to determine the •offence, but after looking in “ his book ” under the head of perjury, he concluded that must be the offence, and so he filled up the warrant and proceeded. We think his Honor properly held that the defendant could not be held respon-sible for the error committed by the justice. This is the common sense of the matter, and it was so expressly held in McNeely v. Griskill, 2 Blackford (Ind)., 259. The ■defendant specially asked his Honor to hold that “ upon the whole of the evidence there is no sufficient evidence to .go to the jury.” This was decline!. This requires us to *367examine the whole of the evidence. The court, after exculpating the defendant for the mistake of the justice, said to the jury, “ But, if the defendant, after the warrant was issued, connected himself with and carried on the prosecution, then, if the jury were satisfied that the prosecution •was for perjury and malicious, they would answer the first issue, Yes.” Without passing upon that part of tire charge as a legal proposition, we find error on another ground. We fail to find any sufficient evidence to go to the jury on that question. The justice says that “ the matter investigated before me was Oakley’s giving a mortgage and stating in the mortgage that it was the only lien.” It is true, he says, he read over the warrant and asked Tate if that was his complaint, and he answered that it was. This must have referred to the facts stated in the warrant, instead of the charge of perjury. This view accords with his own testimony and that of Murray and the justice, and the course of the proceeding and the justice’s return, in which he says the defendant (plaintiff here) was guilty of fraud.

We think his Honor should have directed a verdict in favor of the defendant. The sufficiency of evidence to be submitted to a jury is stated in Young v. Railroad, 116 N. C., 932, 936. It is unnecessary to examine the.other exceptions. ^

Reversed.