Lee v. Curtiss

The record in melith was U'ef-tered for the p?eanof»ora0esi factum; accom-¡⅛?’of '"special matter to be tence "at The trial ,waaanie7id’ mentSofnonsuS’ so as to accord of the case. ed. by striking out the judgment. and en-

THIS was an action of covenant, on a covenant of warranty ⅛ a deed, to which the defendant pleaded non est factum, with notice, pursuant to the statute, of special matter, «fee. to be given in evidence. At the trial, the deed was proved, and a verdict was taken, subject to the opinion of the court, on the question of eviction. The judgment of the court being in favor of the defendant, it was entered upon the record generally, for him, according to the issue of non est factum. now moved to amend the judgment record, by striking out the verdict and judgment, and entering, in their stead, a verdict, that the deed declared on was the deed of the defendant, but that the plaintiff, not having-proved an eviction, could not recover. He stated that the plaintiff would, in the present state of the record, be barred from bringing any other action on the same deed. The difficulty has arisen from the act (1 N, R. L. 515. sess. 36. ch. 55. s. 1. 2 Rev. Stat. 352 ⅞ 10.) for the amendment of the law, «fee., allowing the defendant to plead the general issue, and to give notice of any special matter to be offered in evidence. If the notice had been entered on the record with the plea, the true point in controversy would then have appeared. The record ought to be amended according to the truth of the case, so as to do justice between the parties. suggested that the amendment might be made, by directing a nonsuit to be entered, to which Williams assented.