Majority
p. 474*McNeish against Stewart. ALBANY, Oct. 1827.
Headnote
In covenant the single plea of non est factum, admits the breaches.Where a defendant, by the mistake of his attorney, pleads a plea which does not cover his defense; and, on trial, a verdict is therefore against him, the supreme court will not, for that reason, grant a new trial.
But, semble, equity will give relief.
In an action on covenants of seisin, and against incumbrances in a deed of land, the defendants’ attorney pleaded simply non est factum. At the trial, before Emott, G. Judge, the plaintiff relied on the covenant of seisin only; and rested on proving the deed. The judge ruled that this proof sustained the action, without proof of any thing more. Both parties appeared at the trial; and the verdict was for the plaintiff for the full consideration expressed in the deed, with interest.
And now, on an affidavit .that the plea was put in under a mistaken supposition by the attorney for the defendant, that the plaintiff, must prove a breach, and the defendant might show, in his defense, any matter which would go to defeat or diminish the amount of the plaintiff’s recovery, and that the plaintiff did not pretend a failure of title as to all the land conveyed.
A motion was made to set aside the verdict, and let the defendant in to plead an additional plea.
P. F. Hunn, for the motion.
G. O. Belden, contra,
cited 6 Gwillim’s Bac. 671; 10 Mod. 202, 203; 1 Wils. 98; 9 John. 78 .
We cannot receive this excuse, as a ground for the relief sought. Though it appears to be founded in good faith, yet a contrary practice would lead to endless excuses founded in mere pretence. After the defendant has gone to trial upon pleadings which do not cover his defense, and has a verdict against him, it is too late for him to move for an amendment. He must go down to trial prepared. ( 9 John. 78 .)
Note. The plaintiff’s counsel admitted there would be a remedy in chancery, if the plaintiff should go on to col
p. 475
lect for the value of more land than was lost by failure *of title; and by his consent, this court directed a rule that execution be perpetually stayed, except as to the sum really flue, the amount of which he showed by affidavit
Motion denied.,