Marshall v. Allen, 1 N.C. 83, 1 Mart. 83 (1793)

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

1 N.C. 83, 1 Mart. 83

Marshall vs. Allen.

Pasch. 1 Car.

THE defendant imparled in an Ejectione firmæ, and afterwards pleaded: That the land is of ancient de mesne &c. unde intend. quod curia non vult cognosc. &c. prayed judgment fi actio. The plaintiff demurred.

Sir Thomas Crew, C. J.

I take two exceptions in this case. 1. He cannot plead ancient demesne after imparlance this was adjudged in 4 Jac. inter Clark and Hampton in this court, I was of counsel in the case and the plea of ancient demesne was disallowed after imparlance. 2. The plea concludes to the action.

Doderidge, J.

The *distinction is right, except in case of ancient demesne; which is pleadable after imparlance. For if judgment be given here, it may be reversed for deceit.

Jones, J.

It is so.

With regard to the second, Doderidge, Jones, and Whitlock, Justices, thought the conclusion was right. 7 E. 3. 49 M. 22. Jac. rot. 224. Pierce brought trespass against Atwood quare claufum, ancient demesne pleaded: adjourn. whether the plea in this personal action shall be as in ejectione firmæ. 2. Cr. 6. Palm. 406.