#### JULIUS S. PHIPPS v. CLINTON C. WILSON.

(Decided October 31, 1899.)

Claim, and Delivery — Counterclaim—Damages—Practice.

1. Where claim and delivery are sued out — complaint filed — also answer, denying title of plaintiff, and containing a counterclaim for damages by reason of the unlawful seizure, to which no reply is filed — the question of damages can not be considered until after the issue as to the lawfulness of the seizure is determined.

2. Such counterclaim is inadmissible in this action, as it did not arise out of the same cause of action, and did not exist at the commencement thereof.

Civil AotioN for the recovery of personal property, heard before Robinson, J., at February Term, 1898, of Guilpobd Superior Court.

The plaintiff, by virtue of a mortgage with power of sale from the defendant, claimed to be the owner and entitled to the possession of a water wheel or motor, including all patterns and fixtures for the same. The defendant denied the allegation of ownership, and set upon a counterclaim for damages to his business by reason of the unlawful seizure. There was no reply to the counterclaim.

On motion of defendant, his Honor rendered judgment by default and inquiry in favor of defendant upon the counterclaim; from which judgment the plaintiff appealed.

Messrs. J. A. Barringer and L. M. Scott, for plaintiff (appellant).

Messrs. Charles M. Stedman and J. N. Staples, for defendant.

*107Clase, J.

Tbe plaintiff sued out claim and delivery, tbe defendant set up as counterclaim damages accruing from such seizure, wbicb be alleges was wrongful. There being no reply filed, bis Honor gave judgment by default and inquiry in favor of defendant upon tbe counterclaim. Tbis was error while the issue raised by complaint and answer as to lawfulness of tbe seizure was undetermined.

Besides such counterclaim could not be set up in tbis action, for it did not arise out of tbe same cause of action, nor did not exist at tbe commencement of tbe action. Kramer v. Light Co., 95 N. C., 277; Puffer v. Lucas, 112 N. C., 377.

Error.