Franklin v. Cox , 4 Rand. 448 ( 1826 )

Judge Green

delivered, his opinion, in which the other Judges concurred.^*

It d°es not appear upon the bill of exceptions, upon what ground the County Court refused leave to file the plea of non est factum, which was offered. If it was on the ground that it was offered at too late a period, I think the Court erred. It was a plea to the merits, and the delay in offering it was sufficiently accounted for. If the Court proceeded upon the idea, that the affidavit offered with the plea was insufficient, because it did not allege that he did not deliver the paper in question, as his deed, after the blank was filled up with the sum without his presence or knowledge, I think the Court erred in this point also. The declaration alleges a writing obligatory, perfected on the 23d July, 1817. The affidavit states that the defendant sigred and sealed a blank paper on that day, which has been since filled up in his absence, and without his knowledge. If this had been in the form of a special plea, concluding that it was therefore not his deed, it would have been good, without an averment that he had not delivered it after it- was filled up; as, if an infent executes a deed, and confirms it by word or act after he comes of age, it is valid ab initio; yet in pleading his infancy, he is not bound to allege that he did not confirm it after he attained his age. The plaintiff must reply that he did confirm it. So in this case, if the plea had been special, and the defendant had really delivered the bond after it was filled up, the plaintiff should have replied that fact, if such a replication would not have been a departure from his declaration.

There is a manifest mistake in the affidavit, in respect to the date at which the defendant signed and sealed the paper; a mistake of the writer of the affidavit.

Both judgments should be reversed, and the verdict and judgment set aside, and the cause remanded, with directions to admit the plea of non est factum, upon the mistake in ihe affidavit, in respect to the date at which the defendant signed and sealed the paper in question, being corrected.

* Absent the President and Judge Coaster