Holmes v. . Winegreen , 1 N.C. 771 ( 1793 )

1. He says pixidem, without saying suam, or that he had it in possession.

2. He does not show what charters were taken away, which is not well. For if he brings detinue, he ought to show what they were. 2 H., 7, 6. If an heir pleads in bar detinue of charters, he ought to show what sort of charters. 5 Rep., Playter's case. Trespass quare pisces, suos cepit without showing what kind; held ill. So here, for perhaps they do not belong to him. It would be otherwise if the charters had been locked in the box, but as it is, it is bad. Therefore entire damages being given, it is error. To which it was answered that the damages are not given for the chartas, but for the detention of them until the note was given.

3. The action is quare cepit et detinet quousque, etc., and the jury gave their verdict, that the defendant is culp. transgressionis praedict., and they cannot find the issue by implication. Loveday's case, 8 Rep.

DODERIDGE and WHITLOCK, JJ. (aliis absentibus), inclined on those three points, in favor of the plaintiff, and a peremptory day was given to the defendant to maintain his judgment.

4. Another error was assigned: Prescriptum est ballivo quod caperet instead of capiat. In the replication quod quaerens dixit tunc, instead ofdicit, and the verdict is quod juratores dixerunt, instead of dicunt. The mistake of the tense vitiates the plea. Dyer, 156, 221; 10 H., 7, 12; 35 H., 6, 15; Dyer, 268; 9 H., 5, 12. But the court did not say anything respecting this.

5. A special action on the case does not lie here, but a writ of detinue or trespass. 18 E., 4, 23. An action on the case does not lie where the identical thing may be recovered as here. But the court did not speak on this point.

Calthrop, on another day, moved the court again, and now

DODERIDGE and JONES, JJ., e contra. *The declaration de prixide una cumdiversis chartis, concerning the plaintiff's land, is well enough. For the charters carry with them the property of the box, whether it be sealed or locked, if they are in it. Also, it is certain enough, for damages given for the detention until the note was given, do not interfere with the recovery of the charters. So the issue being tantamount to the general issue, when the jury find the general issue it is well enough, but DODERIDGE, J., agreed to a case put by Calthrop, thus: Issue is an avowry, whether there be a special custom, and the jury find a special verdict, if the court think that the defendant, etc., that he is guilty, and if the court, etc., which is bad. Et adjournatur, on the 4th point ut supra. Godb., 460, 373.