Majority
p. 187Hebberd vs. Delaplaine.
Headnote
In an action of covenant before a justice, the defendant pleaded orally “the gen* eral issue:’’ Held, that this was in effect a plea of non est factum, and that it admitted all the material allegations in the declaration, except the execution of the covenant.Strictly speaking, there is no general issue in covenant; though a plea of non est factum has sometimes been regarded in that light.
Error to the superior court of the city of New-York. Delaplaine sued Hebberd before an assistant justice of the city of New-York, and declared for the breach of a covenant contained in a lease executed by and between the parties, by which the defendant agreed to pay the taxes on a certain lot of land described in the lease. The defendant pleaded verbally “ the general issue.” On the trial before the justice, the plaintiff was nonsuited. The superior court reversed the judgment of the justice on certiorari, and Hebberd sued out a writ of error.
J. B. Manchester, for the plaintiff in error.
R. H. Shannon, for the defendant in error.
The only question that appears to have been litigated on the trial before the justice, related to the effect of the plea. The defendant below contended that the onus lay upon the plaintiff to prove the material averments in the declaration, while the latter insisted they were all admitted by the plea, and that the only proof necessary for him to make was the execution of the lease. I think the plaintiff was right. The plea amounted to non est factum*
p. 188
Strictly speaking, there is no general issue in covenant, though non est factum has sometimes been regarded in that light; so much so indeed that a notice of special matter was allowed to accompany it even before this practice was sanctioned by statute. (Kane v. Sanger, 14 John. R. 89 ; 2 R. S. 352, § 10.) Evidence was given of the amount of the taxes, and the payment of them by or in behalf of the plaintiff.
Judgment affirmed.