Barry & Stile's Case, 1 N.C. 24, 1 Mart. 24 (1793)

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

1 N.C. 24, 1 Mart. 24

* Barry and Stile’s Case.

Pasch. 2 Car.

ONE granted a rent charge to Stiles for his life out of B. acre. The grantor made a lease of this land to Barry; and it seemed that the land was really not worth so much by the year as the rent amounted to: and Stiles to have the rent, sued in the court of Request, and surmised in his bill, that he had lost the benefit of his grant, because he could not avow and sue for it at common law. The court of Request decreed that Barry should pay the rent during his life, and thus by the decree Barry, who is the termor, per chance, shall be charged after the expiration of the term. Therefore a prohibition was granted.

And the court said, that it is the usual practice, in case of bonds &c. to surmise in Chancery, and in the court of Request, that the deeds are lost, when in fact, it is not so.

Jones, J.

It is not right: for if one surmises in Chancery, that he has lost his deed, the court in Chancery ought not, in conscience to help him, for he ought to have taken better care of it. But if the defendant has it, it is conscionable to help the plaintiff; aliter if a stranger had it.

Doderidge, J.

Yet it is the practice, and always allowed in Chancery.

Jones, J.

The Chancery may do as they please. But we ought not to permit the court of Request, who is under our power, to do so.

Doderidge, J.

In my remembrance; the Chancery compelled a man to attorn. But, it will not compell a man to give seizin of a rent seck granted to him. Postea, p. 146.