Hebberd v. Delaplaine , 3 Hill & Den. 187 ( 1842 )

By the Court, Nelson, Ch. J.

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* 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.