Blackston v. Martin, 1 N.C. 112, 1 Mart. 112 (1793)

1793 · United States Circuit Court for the District of North Carolina

1 N.C. 112, 1 Mart. 112

*Blackston vs. Martin.

Hill 1 Car.

ON a seire sacias in nature of an audita quærela issue was joined in Chancery, and sent from there to the county palatine of Durham, to be tried, and a verdict given for the plaintiff, and afterwards the record came to the King’s Bench, and the defendant’s counsel took exception, that the issue was not first sent here, that the Judges of this court might write to the Bishop of Durham to try the issue, and afterwards, make return here, that judgment might be given: and for this reason judgment was reversed. Afterwards on an audita quærela a trial was had, and a verdict had by the plaintiff; and exception was taken that the plaintiff shews that suit tenens unius messuagii in Durham; and that Sir William Blackston was seized of a messuage in Durham, and of divers other lands, and 30 El. acknowledged a statute, and afterwards the conusee had only extended the land in Durham, which the defendant had and not the other land, which the conusees had; ad grave damnum and desired restitution of the mesne profits. The defendant came in and said that Sir William Blackston was not seized of any other lands at the time the statute was acknowledge, and at any time after, whereupon a verdict was found for the plaintiff. Whereupon it was moved in arrest of judgment, that it does not appear, at what time the plaintiff became tenant of the land, at the time of the extent or afterwards. But it shall be intended for the plaintiff, viz. at the time the liberate was delivered: for it is a writ adnomen propter brevitatem, and then he concludes ad grave damnum; the law understands that he was tenant at the time of the liberate, otherwise it is not ad grave damnum; and if it was not so, the defendant ought to have pleaded it; and as he has pleaded other matter, &c. and it is found against him, it is well enough: and a number of precedents were shewn. T. 6 H. 4. rot. 505. 101. M. 16. 17. Eliz. rot. 1313. C. B. On the other part it was alledged that this writ is in lieu of a declaration. 32 H. 6. 14. And in this case, it is not alledged when Sir W. B. parted with the possession, but it is alledged that he was seized, &c. which shall be understood to be the case, unless the contrary be shewn.

Whitlock, J.

The nature of a seire facias is to put everything upon the defendant, for there is judgment tor the plaintiff.

Jones, J.

assented. It is sufficient that he is tenens messuagii. A scire facias is in the nature of a bill in Chancery, therefore that certainty which the *common law requires, is hot expected in it—all scire facias' are alike. If it be otherwise, it ought to be shewn by the other party. And this is the constant practice. I am for the plaintiff.

Doderidge, J, and I also.

Crew, C. J.

So am I. The defendant by his plea admits him to be tenant, and pleads this matter, viz. that Sir William Blackston was not seized of any of these lands, whereby he waves the advantage, he might have taken, and he shall not have it now, for it is the practice in scire facias’ now: and to it was in the time of King James; but it was otherwise in Queen Elizabeth’s time. 33 El. Lovel’s case. Postea, p. 275. 3 Bulstr. 305. Bendl. 161. Jones 82. 90.

Nota. Corporations may have certain things by prescription, and others by charter: and therefore may use both titles.