Wilson v. . Hughes

MerrimoN, J. (after stating the facts). We observe that this is called an “action of claim and delivery.” Properly and strictly speaking, there is no such action. The action commonly so-called is an action to recover the possession of personal property — some specific chattel — and is of the nature of the action of detinue under the common law method of procedure. “Claim and delivery of personal property” is a provisional remedy, incident and ancillary, but not essential to the action. The object of such incidental provision, is to enable the plaintiff, upon giving an undertaking in double the value of the property in question, with approved security, as required by the statute, to obtain the *186 immediate possession of the same, unless the defendant shall give a similar undertaking and security for its delivery to the plaintiff, if it shall be so adjudged, and for the payment of such costs as may be adjudged against him in the action. Thus the property or the value of it, is made secure pending the action, in such way as to answer the purpose of the final judgment. This provisional remedy is peculiar to the Code method of procedure, and gives the action something of the nature of the action- of replevin at the common law. “Claim and delivery” of the property may be omitted, and the action may be simply to recover the possession of the specific chattel, as in detinue, or to recover the value of the property as in trover or trespass. In any case, it is incident to an action, and provisional only. The Code, §§321-333. Jarman v. Ward, 67 N. C., 32; Alsbrook v. Shields, Ibid., 333; Hopper v. Miller, 76 N. C., 402. The Court very properly refused to give judgment for the plaintiff upon the pleadings, because, while the defendant in his answer admitted the allegations of the complaint, except so much thereof as alleged the unlawful possession and detention of the property in controversy, he alleged a counter-claim, and the plaintiff’s reply to the same, raised issues of fact to be tried by a JU17- The defendant alleged in his counter-claim, that the plaintiff, for the consideration specified, sold and delivered to the defendant, some time before the bringing of the action, a mai’e, the subject of the action, representing her to be in all respects sound, and giving his warranty to that effect; that afterwards he discovered that the mare was very unsound and of little value, and this the plaintiff well knew at the time he made the false and fraudulent representations of soundness to the defendant; and that he was thereby greatly damaged, &c. This alleged claim, if well founded, existed in favor of the defendant and against the plaintiffs, and there might be a several judgment as between them in inspect thereto. It arose out of the transaction set forth *187 in the complaint, as the foundation of the plaintiffs’ clajm, and was connected with the subject of the action. It might well be pleaded as a counter-claim. The Code, §244; Bitting v. Thaxton, 72 N. C., 54; Walsh v. Hall, 66 N. C., 233; Hurst v. Everett, 91 N. C., 399. The exception based upon the ground that the Court allowed the defendant’s challenge of the juror cannot be sustained. How the action to which the juror was a party was at issue, does not. appear with certainty. The appellant ought, by his exception, to have made this appear with reasonable clearness. As he did not, it must be taken that issues of fact and law were raised by the pleadings, to be tried according to the course of the Court. If so, the juror’s action, at the time he was challenged in this action, was still pending, arid in the sense of the statute, rendered such juror ineligible in this action. What the Court had done in the action was in fieri during the whole term. The Court might set aside, change, or modify its judgment, and order a trial by the jury, or the appellant in that action might perfect his appeal, thus vacating the judgment. Besides, both actions were tried at the same term, it seems, and one justafter the other, so that it might be, that the juror challenged having an action, and a party to this action, might collude to thwart the ends of justice. The very purpose of the statute allowing such cause of challenge, was to prevent such possible mischief. The Court, during the trial, suggested to the parties that the issue in respect to damage be so modified, as that the jury might “find the value of the horse when sold.” The parties made no objection, but it is plain from what was done and said, that they, the jury and the Court, accepted and acted upon the suggested modification, and it must be so taken. It had been better if the modification had at once been reduced to writing when suggested, but the isfeue, as changed, was distinct and simple. Indeed, the Court, under the circumstances, ought to have directed the Clerk to draw out the issues, as modified, after the verdict was rendered. The Court had authority to so direct, *188 because the verdict was rendered by the jury and received by the Court, as if the modification had been drawn out in writing with the consent of the parties. Moreover, the Court had authority to direct proper issues to be submitted, and this issue, as submitted, was ,a proper one. What the Court said to the foreman of the jury, could not affect the regularity and validity of the verdict. The Court simply propounded an inquiry to him for the purpose of obtaining such information as would enable it to determine whether or not it ought to set- the verdict aside, and direct a new trial. This it might do. The plaintiffs on the other hand might, with the same view, have shown, if they could, that they were prejudiced by the change of the issue. So far as appears, they did not suffer the slightest injury from it. It was contended on the argument, that this action is for the “claim and delivery,” of the property specified in the complaint; that it is peculiar and exceptional in its nature, and a counterclaim cannot be relied upon in it as a defence, because impertinent. This is a mistaken view. As we have said above, the action is simply one to recover the property, and the provisional remedy of “claim and delivery,” brought into it, is incidental and ancillary, its’purpose being to preserve the property until, and to answer the purpose of, the final judgment. There is no reason why the defendant in such an action may not rely upon any counter-claim he may have, whether it be legal or equitable or both, just as in other cases. The allegations and admissions in the pleadings and the findings of the jury upon the issues submitted to them, develop fully the rights, legal and equitable, of the parties in respect to the matter in litigation. In view of the whole, we are of opinion that the Court gave judgment in favor of the defendant for too large a sum of money. No objection was made to the sale of the mare, under the power of sale in the mortgage, by the plaintiff, so far as appears, nor was it suggested that she was worth more than $20 at the *189 time of’ this sale. If the defendant did not approve of the sale, he ought to have raised his objection in some proper way before the Court. If the mare was cured of a disease, and otherwise much improved after the last mentioned sale, and sold for $50, surely the defendant was not entitled to this advantage and increased value. It appears that the plaintiff, on account of the first sale, received $80. The jury found that the mare at the time of this sale, was worth but $75. The defendant then, in view of the facts as settled, was entitled to have from the plaintiffs, but five dollars, and to have judgment for only that sum; and to have the plaintiffs surrender the note for $40 to the end that the same might be cancelled. Let a judgment be entered here to that effect. The plaintiff is entitled to judgment for the costs of the appeal. Judgment accordingly. Error. Reversed.