Rockingham County NcArchives Court.....Samuel Allen, Criswell Key V. 1819
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Deb Haines http://www.genrecords.net/emailregistry/vols/00003.html#0000719 February 3, 2009, 7:20 pm

Source: Nc Reports
Written: 1819

Criswell Key v. Samuel Allen

From Rockingham

November Term 1819

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 ot 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 hero 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 ot 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.

Hall, Judge: 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, 
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. 
And in Cheney's case 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, it shall not he 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. 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.


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