7 Wend. 194 | N.Y. Sup. Ct. | 1831
By the Court,
I understand from the record that the defendant’s plea before the justice was simply? “ that he never gave such a writing,” and that he asked for a nonsuit. The justice says in his return, that he pleaded the general issue, and then states the words of the plea as Above, with the marks of quotation. The justice considered those words as constituting a plea of the general issue.
| It is abundantly settled, that in covenant or debt the plea of non est factum puts in issue the giving of the deed only, and that it is not necessary in such a case for the plaintiff to prove the averments or breaches contained in his declaration. The plea admits all the material averments. . 10 Johns. R. 48. 7 Cow-en, 474. 9 id. 308. There is no dispute as to this rule in courts of record. The question in this case is, whether it is applicable to suits before justices of the peace. The declaration here was in covenant upon an appeal bond, in the ustial form. It averred, 1st. That the appeal was duly prosecuted, and a judgment recovered thereon by the plaintiff, in the court of common pleas: 2d. That the said judgment had' not been paid or satisfied; 3d. That a jd.fa. had been duly issued and returned, nulla bona ; 4th. That a ca. sa. was afterwards duly issued and returned, non est inventus; and 5th. That the judgment is still in force, &c. To this declaration the defendant
Mere matter of form is not regarded in proceedings before those inferior courts; any statement of the cause of action, or the defence, which fairly apprises the opposite party of the grounds relied upon, either to support or defeat the action, is sufficient. The name by which any thing may be called is not, in these cases, material, if the thing itself is right. The mistake in the name is not calculated to mislead. Technical niceties will not be exacted; but parties must be held to a plain and intelligible statement of their cases. Their is no difficulty in this; any man, however unlettered, is capable of doing it. Now the plaintiff’s declaration in this case, though formal, was at the same time perfectly simple and perspicuous-The defendant might, without the aid of the counsel, in his own language, have answered each one, or all of the averments. Instead of that, he simply says he never gave such a writing. Such a plea, under such circumstances, was calculated to make the plaintiff believe that the execution of the bond was the only matter in dispute, and that evidence upon any other point would not be required from him. The court therefore erred in deciding that the plaintiff must prove all the averments in his declarations, or he could not recover. The ca. sa. given in evidence by the defendant was also improperly admitted ; it did not correspond with the judgment on which the plaintiff relied, and no other judgment was proved ; and it was not authenticated in any manner.
Judgment reversed, and venire de novo to Cayuga common pleas.
