Opinion
(June Term, 1860.)
Where in the trial of an action for the detention of a slave, in the Superior Court, a verdict was rendered subject to the opinion of the judge as to the questions of the law governing the case and an appeal to this Court these questions were decided in favor of the plaintiff, but in making up the record below it was omitted to set out the jurors, and the verdict was left blank as to the value of the slave and the damages for his detention, it was Held that the court in which omission was made might amend the record nunc pro tunc, and, to enable it to do so, might order an inquiry as to the value of the slave and damages for the detention.
MOTION to amend, and for an inquiry, heard before Shepherd, J., at last term of NEW HANOVER.
W. A. Wright and Strange for plaintiffs.
E. G. Haywood for defendant.
The cause in which this motion was made was originally tried before Saunders J., at Fall Term of that court, and a verdict was taken subject to the opinion of the court on the questions of law governing the case. These questions came to this Court by appeal, and were disposed of at last term, ante, 255. It turned out that in making up the record in the court below the verdict was left blank in several particulars, particularly as to the value of the slave and the damages for (405) detaining him. The record omitted also to state the names of the jury rendering the verdict. The court allowed the record to be amended nunc pro tunc, so as to set out the names of the jury trying the cause. His Honor also ordered that an inquiry be submitted to a jury to ascertain the value of the slave, Henry, sued for, and the amount of damages the plaintiffs were entitled to for the defendant's unlawful detention of the said slave. From the ruling of the court, in both these particulars, the defendant appealed to this Court.
The objection that the court had no power to order the amendment in respect to setting out the names of the jurors, and the verdict, was not insisted on before us, and in regard to the want of notice, the facts are not stated, but we see from the record that the defendant was heard upon the motion to amend, and that, we think, was sufficient. There is no rule of practice requiring any particular notice to be given — ten or five days, for instance; and we cannot suppose that the court would allow a party to be taken by surprise.
Whether, under the power to amend, and its general power and control over its records, the court was authorized to direct an inquiry as to the value of the slave and the damages for detention, to be executed at its next term, for the purpose of putting itself in a condition to perfect the record by filling up the blanks which had been left in the verdict, is a question of more difficulty. It was the duty of the court, ex officio, when the case was tried, to have the value and the damages for the detention fixed by the jury, but at the trial many interesting questions of law were presented, and as the facts were not controverted, his Honor directed a verdict to be entered for the plaintiffs, subject to his opinion on the questions of law. Under such circumstances the attention of the court, and the gentlemen of the bar, is mainly directed to the points of law, the details of the verdict being left open to be filled (406) up afterwards, which is usually done as a matter of consent. In this instance, it seems, the details of the verdict were not attended to, and the question is, Had the court power after an appeal, and at a subsequent term, to supply the omissions in the verdict by means of an inquiry? It would be a matter of regret if the court does not possess this power, for otherwise the plaintiff will be forced to lose the value of the services of the slave during the time of the unlawful detention by the defendant, and this failure of justice will be the result of an omission of the ex officio duty of the court to have the damages for detention as well as the value of the slave, fixed by the verdict.
We were, therefore, relieved by finding a precedent which recognizes the power to supply all such omissions by means of an inquiry. Key v. Allen, 7 N.C. 523. In that case the subject of writs of inquiry is fully explained, and it is decided that in this State an inquiry may be resorted to to supply all such omissions, the Court holding that the restraint upon it in England, by reason of the doctrine of attaint, has no application here, where that doctrine does not obtain — cessante ratione, and recommending its liberal use "when convenience or the justice of the case requires it," the more especially because inquiries are executed here before the court, and not, as in England, before the sheriff, acting in a judicial capacity; so that here the proceeding can be more readily reviewed.
This is an answer to the objection, made on the argument, that in taking the inquiry a question of law would arise as to the time for which the plaintiffs were entitled to recover the value of the services of the slave. In Key v. Allen it did not become necessary to decide whether the inquiry should be executed before the Superior Court or before this Court, and neither the report of the case nor the original papers (which have been examined) show how the matter was disposed of. We presume, after the power to supply the omission was established, no further difficulty was made, and the matter was arranged by (407) consent. The Court concurs with his Honor, in the court below, in the opinion that it is proper to execute the inquiry in that court, because the omission in the verdict, which it is the object to supply, occurred there, and it is, consequently, the duty of that court to resort to all its powers in order to perfect its record, and thereby put itself in a condition to comply with a writ of certiorari by sending such a transcript as will enable this Court to render judgment. There is
PER CURIAM. No error.