4 Barb. 243 | N.Y. Sup. Ct. | 1848
The declaration in this cause was in assumpsit. The plea alleged that the promises, &c. were made by the defendants jointly with one Parker, and that the plaintiffs, by their deed of release, made, &c. released to said Parker the said promises, &c. To this plea the plaintiffs replied that they did not release to said Parker the said promises, &c. and the defendants have demurred because the plaintiffs have not denied the deed in legal form by a plea of non est factum, but have denied the legal effect of the release. It is true that such is the legal effect of the replication. The plaintiff cannot dispute that the promises were made by the defendants jointly with Parker, nor that they executed to Parker a deed of release; but they have raised the question whether the legal operation and effect of the deed are such as to release the promises declared on. This is in point of form bad pleading. The rule is laid down in Chitty on Pleading, (1 vol. p. 483 ; 7th Am. ed. 519,) in these words: “ A party to a deed, who means to deny it, must plead non est factum, and cannot in pleading deny its operation by averring that he did not grant, or did not demise, &.c. But a stranger to the deed need not plead non est factum, but may deny its effect, as by pleading non feoffavit,” &c. Now the plaintiffs are parties and not strangers to the deed, and should have pleaded non est factum. (See also 3 Wentworth’s Pleading, 157, 8, where the forms of the plea and replication are given.)
But this is a defect oí form only, and doef not affect the substantial rights of the parties. Upon the issue which would be presented for trial upon the present pleadings, the question would be whether the defendant’s promises were released by
Judgment for the defendants.