Brewer & Hoffman Brewing Co. v. Boddie , 59 Ill. App. 45 ( 1895 )

Mr. Justice Gary

delivered the opinion of the Court.

The appellee sued the appellant for rent upon a lease which purported to be executed by the appellant.

The appellant undertook in the court below, and repeats the effort here, to question the execution of the lease by the appellant, but the court peremptorily instructed the jury to find for the appellee.

The appellant complains now with more emphasis of the celerity of the court in making the statement that he thought the appellee was entitled to such an instruction, than of the instruction itself.

The appellant pleaded non-assumpsit and a plea denying the execution of the lease, followed by an affidavit of merits, concluding with the sentence, “ This affiant further says that the above and foregoing plea is true in substance and in fact as is therein alleged.” Which plea ? non-assumpsit or non est factum f

Such an affidavit appended to two pleas verifies neither. If charged with perjury in swearing to either, his defense might be that he meant the other; as, if perjury is charged upon two contradictory oaths, the defendant can not be convicted of false swearing in either, simply on the contradiction. 3 Russ, on Crimes, 82.

On this pleading, under Sec. 34 of the Practice Act, the defense of non est factum was not open to the appellant. Supreme Lodge v. Zuhlke, 30 Ill. App. 98.

There being no other defense, the appellee was entitled to the peremptory instruction. Anderson v. McCormick, 129 Ill. 308.

The judgment is affirmed.