Gardner v. Gardner

10 Johns. 47

Opinion

Per Curiam.

The plea of non est factum only put the deed' in issue, and it was not requisite for the plaintiffs to prove their averments. The authorities cited (Tidd and Peake) establish this rule. The covenant declared on and produced, was to the plaintiffs and not to the widow. The term widow is Used in it only td designate the obligation, of which they were to pay their proportion. The covenant was a counterpart tq one made by the plaintiffs in favour of the defendants, and was to meet the proposition contained in the plaintiffs' covenant. Both covenants were mu. tual between the heirs. The nonsuit must be set aside, and a new trial awarded, with costs to abide the event of the suit.

New trial granted.