Bellamy v. Balthrop, 1 N.C. 184, 1 Mart. 184 (1793)

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

1 N.C. 184, 1 Mart. 184

Bellamy vs. Balthrop.

Mich. 2 Car.

TROVER for certain loads of fetches, and other grains in Warda de Cheap, London. The defendant pleads, that the parish of E. in -, is an ancient parish, and the rectory of E. an ancient rectory and that time out of mind it has been impropriated, and that John Earl of Clare was &c. et adjuc est seized of the dismes of all the grain in this parish in fee, and on such a day, in April 1 Car. leased to the defendant all the dismes of grain for one year next coming, and that the load of fetches, and that the fetches in the declaration, were growing in the said parish in that year, and that he took them being severed of the nine other parts for tithes, and was possessed of them, and at E. aforesaid lost them, and I. found them and delivered them to the plaintiff, secure custodire, whereby the plaintiff was thereof possessed, until in warda de cheap he lost them and the defendant found them and converted them to his own use. The plaintiff demurs because this plea amounts to the general issue.

Jermyn, pro defendente.

1. I agree that the lease for years here is void, but it appears that the title, is *confessed to be in Lord Clarke, so that the plaintiff has no cause of action. 2. It appears also that the action was not brought in the proper county.

Jones, J.

There is no confession here, for it is a bad plea.

Secondly, if the lease had been pleaded by deed, then this special plea would have been well to bring the trial into the proper county. As in 38 El. Piggot and Hele, in trover and conversion. Likewise in a case between my father and Lord St. Johns, who brought such an action against my father in Suffolk, for hay growing in Wales. There was a case, this term, Styles vs. Snellgrave, in C. B. where one brought an action of trover, for two calves, declaring that he was possessed of them as of his own goods, and lost them, &c. The defendant justified, because one Serjeant, was possessed of them, as of his own goods; and on such a day and year died, and made the defendant his executor, and gives colour to the plaintiff, and so justifies. On this plea there was a demurrer; for it amounts to the general issue, When it is alledged in the declaration, that the plaintiff was possessed of them as of his own goods, &c. and the the defendant says, that another was possessed as of his own goods; this amounts to a plea of nonculp. And in all actions of trover, every special plea, with colour, amounts only, to the general issue: unless if is something concerning the title to the land. But as here the title to the land is not in question, but the matter is only a tresspass for goods carried away; it is otherwise, and the special plea with colour, as it does not concern the title, is a good plea.

Quod, Jones, J. concessit But

Whitlock, J.

I hold that the plea is not good. In as much as it concerns the title to the land, yet as he has not conveyed a good title, the lease is void, and then it is all one with Styles’ case above cited. Adjournatur.

Afterwards P. 3 Car. The case was moved again, the *court being full, and on the same reason, as above, a day was given to the defendant to shew further cause, otherwise judgment would be given against him.

Doderidge, J.

If in trover, a title is derived from a stranger, it amounts only to the general issue, aliter, if from the plaintiff.

And on the next day, the defendant having not shewn cause, &c. Per totam curiam, judgment for the plaintiff. Godb. 462, 373. Bendl. 202, 203. Noy 89. 1 Cr. 599. Mo. 483. 2 Co. 45.