Wood v. Marsh, 1 N.C. 121, 1 Mart. 121 (1793)

1793 · United States Circuit Court for the District of North Carolina
1 N.C. 121, 1 Mart. 121
Wood and Newman vs. Marsh

*Wood and Newman vs. Marsh.

Pasch. 2 Car.

REPLEVIN. The defendant avowed that the Dean and Chapter of Westminster were seized in jure collegii, *124(without saying of what estate) and being seized, made a lease of 99 years to one Wade, who leased it to the plaintiff for part of the term, rendering rent. Wade made his wife executrix and died, and the for rent arrear after his death avowed, and Newman as her bailiff made a conizance, whereupon the plaintiff demurred generally.

1. It does not appear of what estate the Dean and Chapter were seized, for they may be seized pur auter vie and then the life of the cestui que vie ought to be alledged. And although as it is given to an aggregate body, it may be understood to be a fee: yet the plea shall be taken more strongly against the pleader.

Curia. Crew, C. J. Doderidge, J. and Jones, J. granted that an avowry is like an action and a declaration. But

Jones, J.

There is a difference between an aggregate and a single corporation But this not now in the case of a purchase, but in pleadings. If he had said that I. S. being seized in fee, gave it to the Dean and Chapter, and they were seized, perhaps it would have been understood to be a fee.

Doderidge, J.

It he had pleaded that the Dean and Chapter were seized juri collegii to them and their successors; it would be understood to be a fee.

So the court were of opinion that this was badly pleaded. But as it appeared to them that the right was in Mrs. Wade, they proposed an agreement.

Another exception taken was, that there is no profert literar, testamentar. But the court overruled it.

Jones, J.

The general demurrer cures this, for the testament is not traversable.

Crew, C. J.

An avowry is in lieu of an action: therefore he ought to shew the letters testamentary.

The last exception was, that she avows for rent due to her and her husband, without shewing when he died.

And this was also overruled. And a peremptory day was given. Antea, p. 14. Postea, p. 211. Poph. 163. Bendl. 159.