Pannell v. . Hampton , 32 N.C. 463 ( 1849 )

The judgment is erroneous, being rendered neither according to the common law nor the statute. At common law the judgment in replevin, upon a verdict for the defendant, is that he have a return of the goods, to be held by him irrepleviable; and upon a nonsuit, it is for the return merely. Blk. Com., 149; 1 Arch. Pr., 83. It was by St. 7 Hen. VIII., ch. 4, and Hen. VIII., ch. 19, that avowants and other defendants in certain actions of replevin were allowed to recover damages, after a verdict or a nonsuit, to be assessed or inquired of by a jury at the prayer of the defendant. 2 Sellon Pr., 269, 271; Arch. Forms, 426-7. The judgment is for the return of the goods, and for the damages and costs. Now, our act, after prescribing what judgment the plaintiff in replevin shall have when the slave is delivered to him or kept by the defendant, proceeds to enact what shall be done when the slave is delivered to the plaintiff and there is a verdict for the defendant, namely, that the damages sustained by the defendant by being deprived of his property shall be ascertained upon an issue, and that judgment shall be rendered against the plaintiff and his sureties for the amount of the bond given by them, to be discharged upon the payment of the damages assessed and costs. Rev. St., ch. 101, sec. 6. It omits the provisions contained in the English statutes for an assessment of damages when there is a nonsuit. Whether, when there is a verdict, the damages are to include the value of the slave, as well as the loss from being deprived of the possession of the property, or the judgment is still to be for a return and for the damages, restricted to those arising from the change of possession, may, possibly, (465) admit of some doubt, as the act is expressed. One would certainly expect, indeed, that the defendant would be entitled to the return of the slave, especially if he desired it. The point has not been before this Court, and we are not informed of the construction placed on that part of the act on the circuits, until the present case. The court does not propose to decide it, as it does not affect this case. If, however, the rule laid down to the jury be correct, it would seem highly probable that the omission to provide for a case of nonsuit was of purpose, as this case shows there might be good reasons for the distinction. For it would be an exceedingly great hardship upon the plaintiff to be conclusively bound to pay the value of the slave and his hire, or, at least, the debt in the execution, if less than such value, merely for a mistake in the form of the action brought by him. If a verdict be rendered for the defendant, it may be assumed that he has established the slave to be "his property." But this nonsuit was ordered simply because the sheriff was not liable to be sued in replevin, and the presumption rather is that the plaintiff would have shown the property to be his if the court could have heard his evidence. At all events, the title stands indifferent; and in that state of the case it may well be that the Legislature meant the plaintiff should not be absolutely bound to pay the value of the negro, that is, the utmost which would have been recovered from him if there had been a verdict against him on the title. It certainly is more just that the judgment should be for the return of the slave, as at common law; and after that shall be done the parties will then be at large again, to assert and defend their respective titles to the slave in detinue, or such other actions as may be proper to bring the matter to a decision on the merits. But whether the omission of a provision in the act for a nonsuit was by design or oversight, it certainly exists; and, therefore, in such a case there cannot be judgment for damages, (466) but only for a return and the costs. If the slave should not be returned in obedience to the judgment, the defendant will have redress on the replevin bond, which is payable to himself; and if he should be returned, he will then be held or disposed of by the defendant as if he had not been replevied.

The judgment must be reversed with costs in this Court, and a judgment entered, as at common law, for the return of the slave and the costs in the Superior Court.

PER CURIAM. Judgment reversed, and judgment for defendant.

Cited: Eborn v. Waldo, 51 N.C. 439; Woody v. Jordan, 69 N.C. 197, 8.