Denton v. Bours

1 Ant. N.P. Cas. 241

• Court: New York Supreme Court
• Decided: May 15, 1816
• Status: Published

Opinion

Spencer, J.

Upon the plea of non est factum, the execution of the deed is alone in controversy. The defendant is not bound to plead more of the deed than makes for him. If the plaintiff intended to rely on the condititin, he ought to have pleaded it by way of replication.

(1)

Manning and D. B. Ogden, for plaintiff.

Ely, McOoun, and Emmet, for defendant. '

The material part of the covenant omitted in the defendant’s plea, was in the nature of a condition precedent, the covenant was to be void, if not signed by all the creditors. The plea was certainly bad in this particular; but the only mode for the plaintiff to avail himself of it, was by craving oyer of the covenant, enrolling it, and demurring: for, the defendant, by only showing part of the indenture, deprives the plaintiff of the opportunity of assigning a breach in the other part omitted. Hudson v. Spier, 3 Lev. 50; Com. Pleader, 2 v. 3. Non est factum, in covenant, only puts the deed in issue. 1 Cbitty, 482. Thus, in the case of Gordon v. Gordon, (1 Starkie, 294,) which was an action of covenant, to which defendant pleaded non est factum.