Opinion
(December Term, 1845.)
1. In an action of replevin, if the defendant wishes to put in issue the title of the plaintiff, he must plead that the title is in himself or some other person by whose authority he took the property. Where the plea is only non cepit, etc., the plaintiff's title is not denied.
2. In an action of replevin for slaves the jury, if they find for the plaintiff, must in their verdict assess the value of each slave.
APPEAL from STANLY Fall Term, 1845; Caldwell, J.
No counsel for plaintiff.
Iredell for defendants.
(39) This was an action of replevin for negroes Mary and Bill. The defendants pleaded the general issue, and, on the trial below, the jury found a verdict for the plaintiff on the issue joined, "and assessed his damages to $500." The plaintiff had not shown any title to the negroes in controversy. From the judgment rendered on the verdict, the defendants appealed.
This is an action of replevin to recover two negroes. The only plea, the general issue, which is non cepit modo et forma. On the trial below it was insisted by the defendants that the plaintiff had not shown any title to the negroes in himself. If it had been his intention to put in issue that question, he ought to have pleaded title in himself, or some other person by whose authority he took the negroes. Under such a plea it would have been incumbent on the plaintiff to show he had the title. In this case it was not necessary. The defendant had not denied it by his plea. Under the plea of non cepit, all that the plaintiff has to do is to prove the taking or having the goods, or part of them, in the place specified. As the defendant, under this plea, merely denies the taking, he cannot controvert the plaintiff's title. 2 Stark. Ev., 714, 715; 1 Ch. P., 482; 1 Saun., 347, note 1. The jury by their verdict have found that the defendants did take the negroes modo et forma.
In looking into the record, however, we find that the verdict, from inadvertence, is not so taken as to authorize any judgment upon it. The jury say "they find for the plaintiff, and assess his damages to $500." The writ has set forth the value of each of the slaves, and the jury in their verdict, as in an action of detinue, should have found the value of each slave separately. The act of 1828, 1 Rev. Statutes, ch. 101, sec. 5, directs that when the plaintiff shall recover, "final judgment (40) shall be rendered against the defendant, and his sureties on his bond, for such value as shall be assessed by the jury upon such slave or slaves demanded by the writ," etc. It is manifest, then, that upon this verdict the court can render no final judgment, because that must be for the value of the slaves as fixed by the jury. We should not disturb such a verdict, but direct a writ of inquiry to ascertain the value of the negroes, Key v. Allen, 7 N.C. 524, if we were satisfied that the want of an assessed value by the jury was the only error in the verdict; but we cannot believe that the verdict as it appears on the record before us expresses the real finding of the jury. Six hundred and fifty dollars is the value of the slaves, as sworn to by the plaintiff. We say the sworn value, because the law requires that the clerk in issuing the suit shall annex to the description of each slave a value double to that sworn to, and in the writ the value of both is stated to be $1,300. The case states that the negroes, shortly before the bringing of the writ, went into the possession of the defendants. Section 6 of the act of 1828 requires the court, when the plaintiff shall effect a recovery in a writ of replevin, to give him a judgment for double the real damages assessed by the jury for the taking and detention. If the verdict were permitted to stand, the court, in obedience to the act, must give judgment for the plaintiff for $1,000, and that for the damage sustained by the plaintiff for the detention of two negroes whose real value is but $650. We cannot believe that such was the understanding or intention of the jury. It may, however, have been so; but as they have omitted an essential part of their duty, we prefer ordering a venire de novo to directing a writ of inquiry.
PER CURIAM. Venire de novo.
Cited: Vinson v. Knight, 137 N.C. 412.
(41)