Smithdeal v. . Wilkerson
6 S.E. 71
N.C.
1888
Check Treatment
Davis, J.,

(after stating the facts). The defendant insists that the action should have been brought to the Cоunty of Stanly, in which the defendant resides, and where the horse, the subject of the action, is. He says it is governed by § 190, subsec. 4, of The Code, which provides, that actions “for the recovery of personal property, distrained for any cause,” must be “tried in the county in which the subjеct of the action, or some part thereof, is situated,” and that the placе of trial should be changed, as provided in section 195, of The Code.

This depends upon the cоnstruction ‍​‌​​‌‌‌​​‌​‌‌​​​‌​‌​‌​​​​‌​‌​​‌​‌‌‌​‌‌​​‌‌​‌​‌​​‍to be placed upon the words “ distrained for any cause.”

It is said by Chief Justice Taylor, in Kitchen v. Tyson, 3 Murph., 314, “ It is a rule, that when a statute makes use of a word, the meaning of which was well ascertained at common law, the word will be understood in the sense it was at common law.” The same rule is laid down in Adams v. Turrentine, 8 Ired., 150.

The word “ distrained,” used in The Code, must, of necessity, cоnstitute an exception to this general rule. The old action of “ Distress,” which Blackstone says was of “ great use and consequence,” was limited to the distraining cattle or gоods for “ non-payment ‍​‌​​‌‌‌​​‌​‌‌​​​‌​‌​‌​​​​‌​‌​​‌​‌‌‌​‌‌​​‌‌​‌​‌​​‍of rent, or other duties, or distrain- *54 mg another’s cattle, damage feasant." This old remedy, as was-said by Judge Rodman in Harrison v. Ricks, 71 N. C., 7, quoting Dalgleish v. Grandy, Conf. R., 22, “ was long ago held to have bеen abolished in this State.” The word “ distraint” or “ distrained,” cannot have the old technical common law meaning, in the legal vocabulary of the present day; with all its “use and consequence” to the landlord of old, and all the ancient learning incident to it, we now have no practical concern. But conceding, as the appеllant insists, that its common law meaning no longer attaches, we are unable to see, if it has any meaning, how it can help the defendant; for the property in question was nоt “ distrained” for any cause; and, to adopt the construction insisted upon b}' him, these words must be treated as superfluous and unnecessary, which is not permissible, if any consistent mеaning can be given to them. If the view of the defendant be correct, the Legislature would have simply said, “for the recovery of personal property,” without the added words, which limited, and were intended to limit it, to property “ distrained,” that is, “ seized,” “ taken and lawfully held,” not wrongfully, but by some recognized legal right. We think this is made clear by the oath required of a plaintiff before he can obtain an order for the delivery of persоnal property. He is, among other things, required to make oath, that the property “ has not been taken for tax, assessment, or fine, pursuant to a statute, or seized under an еxecution or attachment against the' property of the plaintiff,” &c.

There is another view, fatal to the appellant’s contention. ‍​‌​​‌‌‌​​‌​‌‌​​​‌​‌​‌​​​​‌​‌​​‌​‌‌‌​‌‌​​‌‌​‌​‌​​‍Claim and delivery is not a substantive action, but is only provisional and ancillary to the action for the recovery of pеrsonal property, where the plaintiff seeks to get possession of the property, pending the action, and in this respect it is not unlike the old action of Reрlevin, which would not lie against an officer who had seized property under legal рro *55 cess, or “ against persons holding the same in custody of the law.”

The plaintiff is not оbliged, when he brings an action for the recovery of personal property, to make the affidavit and give the undertaking required for Claim and Delivery. The latter is only anсillary, ‍​‌​​‌‌‌​​‌​‌‌​​​‌​‌​‌​​​​‌​‌​​‌​‌‌‌​‌‌​​‌‌​‌​‌​​‍and if he does not give such undertaking, the judgment, if he recover, as in the old actiоn of Detinue, is for the possession of the property, or for its value, and damages for its detention. Jarman v. Ward, 67 N. C., 32.

It may be that great inconvenience and difficulty may sometimes arise, in the enforcement of the ancillary remedy of Claim and Delivery, when the plaintiff rеsides in a county at a great distance from that in which the defendant, from whose pоssession the property is taken, resides ; but this cannot affect the clear meaning of the statute, which allows actions for the recovery of personal prоperty (unless “ distrained for any cause”) to “ be tried in the county in which the plaintiffs, or the defendants, or any of them, shall reside at the commencement of the action.”

Bеfore the present system, (Revised Code, Chap. 31, § 37, and Chap. 98,) a plaintiff ‍​‌​​‌‌‌​​‌​‌‌​​​‌​‌​‌​​​​‌​‌​​‌​‌‌‌​‌‌​​‌‌​‌​‌​​‍residing in the county of Cherokee might bring his action of Replevin to the Superior Court of that county, against a defendant, wrongfully in possession of his property, residing in the County of Currituck. We think the law is plain, and the difficulties or inconvenience that, may result, are not for our consideration.

There is no error. Affirmed.