Opinion
May Term, 1819.
From Rockingham.
In detinue. The Jury find for the Plaintiff, and assess damages for the detention of the slaves, but do not find the value of the slaves. The Court will award a writ of enquiry to assess the value, and not order a new trial in toto.
What matter cannot be supplied by writ of enquiry.
If the principal Jury omit to find matter which goes to the very point of the issue, and upon which, if they had found a false verdict, an attaint would lie by the party injured, such matter cannot be supplied by writ of enquiry, because the party thereby injured may lose his writ to attaint, which will not lie upon an inquest of office.
The rule is, that where the Court ex officio ought to enquire of any thing upon which no attaint lies, there the omission of it may be supplied by a writ of enquiry of damages; but in all cases where any point is omitted, whereof attaint lies, it shall not be supplied by writ of enquiry, because on that writ no attaint lies.
This rule of the Common Law, as to writs of enquiry, is not enforced here as it is in England. The doctrine of attaint has never been in force; here; and therefore the Courts will award writs of enquiry in all cases where convenience and the justice of the case require it.
Formerly inquests of office were held by the Sheriff. By the act of 1777, ch. 2, cognizance is taken of them by the Court that awards them: and even if the law of attaint were in force, it would be a matter of speculation whether it would apply to writs of enquiry executed by Courts of record.
This was an action of detinue for sundry negro slaves. The jury found for the Plaintiff, and assessed damages for the detention of the slaves, but did not find their value. The Defendant moved for a new trial, and a question arose whether the Court should award a new trial in toto, or permit the verdict to stand, and award a writ of enquiry to assess the value of the slaves.
It is laid down in the English books, that if the principal Jury omit to find matter which goes to the very point of the issue, and upon which, if they had found a false verdict, an attaint would lie by the party injured, (524) such matter cannot be supplied by writ of enquiry; because thereby the party may lose his action of attaint, which will not lie upon an inquest of office. Carth. 362. L. Ray 59. 1 Salk. 205. Skinner 595. Pl. 8. And in Cheney's case, 10 Coke, 118, where a writ was brought de valore maritagii, and issue was taken on the tenure, c. and it was found for the Plaintiff, and the Jury assessed damages and costs, but did not enquire of the value of the marriage, as they ought to have done, it was resolved that the verdict was insufficient; and it was said that three things are to be recovered, to-wit, the value of the marriage, damages and costs; and that although the issue be de valore maritagii upon the tenure, yet as a consequent or dependent upon the issue, the Jury, if they find for the Plaintiff, are, as parcel of their charge, to enquire of the value of the marriage, c. and if they assess excessive damages, attaint lies. In this case, it is to be observed, that if the Plaintiff could not recover any thing in kind, as in detinue, where he may recover the thing sued for, but could only recover the value of the marriage, damage and costs. If the marriage were not assessed, he could recover nothing in lieu of it.
In detinue, the Plaintiff recovers the value of the thing sued for, if the thing itself be not restored upon the issuing of a distringas. In the first case, the object of the suit cannot be attained without assessing the value of the marriage; in the latter, it may or may not. Lord Coke, however, seems to have made no difference in the two cases: he says "the rule is that where the Court, ex officio, ought to enquire of any thing upon which no attaint lies, there the omission of it may be supplied by a writ of enquiry of damages; but in all cases where any point is omitted whereof attaint lies, it shall not be supplied by writ of enquiry, because on that writ no attaint lies; and therefore in detinue, if the Jury find damages and costs, and no value as they ought, (525) it shall not be supplied by writ of enquiry of damages, for the reason aforesaid." However, afterwards in Burton v. Robinson, 1 Keble 882, where Cheney's case was cited, in an action of detinue for a deed, a writ of enquiry seems to have been granted to assess the value, which the first jury omitted to do. But this decision met with the disapprobation of Lord Holt, as expressed by him in Sir James Harbert's case, Skinner 595 Pl. 8, for the reasons given in Cheney's case. But the reasons which influenced the Judges in England in awarding or not awarding writs of enquiry to supply the omissions of the principal or first Juries, do not apply in this State, because the doctrine of attaints never has been nor is it now in force here. It has fallen into disuse in England, but the course of Judicial proceedings to which it gave rise still continues.
In replevin brought and a nonsuit entered, or in case of a demurrer to evidence, and the Jury discharged, there shall be a writ of enquiry, for the Jury does not give any verdict, and they cannot assess the damages. Skinner 509. Pl. 8. The like Law holds in case of common demurrers. 1 Plowd. 283.
As we are, therefore, not restrained by the law of attaints from issuing writs of enquiry, where convenience and the justice of the case requires it, I think it agreeable to both, that one should issue in the present case. Formerly inquests of office were held by the Sheriff; but by the act of 1777, ch. 2, sec. 80, cognizance is taken of them by the Court that awards them. And, indeed, if the law of attaints were in force, it would be matter of speculation whether it would apply to writs of enquiry when executed by Courts of Record. The Court are of opinion that a distringas should issue, and if the slaves be not delivered to the Plaintiff, that a writ of enquiry should be issued to ascertain the value of the slaves, and for the value thus ascertained, the Plaintiff may sue out a fieri facias, or capias ad satisfaciendum, at his pleasure.
Cited: Rowland v. Mann, 28 N.C. 40; Freshwater v. Baker, 52 N.C. 406, Holmes v. Godwin, 71 N.C. 309, 10; Burton v. R. R., 84 N.C. 201; Strother v. R. R., 123 N.C. 200; Benton v. Collins, 125 N.C. 91. (526)