The facts and substance of the pleadings are sufficiently stated in the opinion of the Court.

PEARSON, C. J.

This is an action to recover the possession of personal property, and damages for the detention.

The complaint alleges an executed contract for the sale of two steers, and a cow and calf, by force of which the ownership was vested in the plaintiff. The plaintiff does not make the affidavit or give the undertaking as required by C. C. P., secs. 177, 179. To this the defendant demurs, and for ground of 177 demurrer specifies: "The action is for claim and delivery of personal property, and the plaintiff has not complied with C. C. P., secs. 177, 178, 179 (ch. 11, p. 63)."

This presents the question: Is the affidavit and undertaking required to be filed in all actions to recover the possession of personal property; or may the plaintiff, if he chooses, allow the property to remain in the possession of the defendant, pending the action, and thus avoid the necessity of making the affidavit or of giving the (33) undertaking, which latter requisite plaintiffs may not in all cases be able to comply with?

We think it clear, by an examination of C. C. P., that, in this action, if the plaintiff is content to let the property continue in the possession of the defendant pending the action, he is not required to make the affidavit or give the undertaking required by sec. 177, 178, 179. It is then, in effect, the old action of detinue, and the judgment set out in sec. 251, C. C. P.: "In an action to recover the possession of personal property, judgment for plaintiff may be for the possession, or for the value of the property (in case a delivery can not be had) and damages for the detention," etc.

It is only in cases when the plaintiff seeks to have the property delivered to him instanter and to have the possession pending the action, as in the old action of replevin, that the affidavit and undertaking are required.

This is obvious by looking at C. C. P., title IX, "Of provisional remedies in civil actions," ch. 1, Arrest and Bail, ch. 2, Claim and Delivery of Personal Property. This provisional remedy presupposes an original remedy, in which the provisional remedy may or may not be applied for.

This general view of the subject does not seem to have suggested itself to his Honor, or to the counsel, nor was C. C. P., sec. 251, adverted to.

The demurrer is overruled, and there should be judgment that the plaintiff recover the two steers and the cow and calf, (which are described with great certainty in the complaint), together with damages for the detention and costs, and in case the property, or any part of it, can not be had, then that he recover damages by way of valuation in addition to damages for the detention.

The case is remanded, to the end that the amount of damages may be enquired of, and final judgment be entered in the Superior Court; unless the defendant be allowed to amend his pleadings, by withdrawing the demurrer and putting in an answer. Love v. Com'rs, 64 N.C. 706, Mervin v. Ballard, 66 N.C. 398. (34)

Defendant to pay costs in this Court, and judgment on the undertaking for the appeal.

PER CURIAM. Reversed.

Cited: Blakely v. Patrick, post, 42; Hooper v. Miller, 76 N.C. 404; Jones v. Ward, 77 N.C. 338; Wilson v. Hughes, 94 N.C. 186; Smith-deal v. Wilkerson, 100 N.C. 55; Kiser v. Blanton, 123 N.C. 404; Oil Co. v. Grocery Co., 136 N.C. 355.