McNeish v. Stewart

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. cited 6 Gwillim’s Bac. 671; 10 Mod. 202, 203; 1 Wils. 98; 9 John. 78.