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

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.