#### Franklin v. Cox.

August, 1826.

Pleading and Practice — Non Est Factum — When Received. — The plea of non est factum is a plea to the merits, and ought to he received after an issue made up on the plea of payment, upon the delay in filing it being sufficiently accounted for.

Same — Same—Affidavit—Allegations ol — The affidavit filed with the plea need not allege that the defendant did not deliver the paper in question, as his deed, after the blank was filled up with the sum without his presence or knowledge.

This was an appeal from the Superior Court of Campbell county.

An action of debt was brought in the County Court of Campbell, by Cox against Franklin and three others, on *a paper under seal, purporting to be a penal bill, and to be executed by the defendants. The defendants pleaded payment, and issue was joined. At a subsequent term, the defendant Franklin, offered an additional plea, which was a general plea of non est factum. This plea was rejected by the Court, and the defendant excepted.

The bill of exceptions sets out an affidavit which was offered with the plea,' stating, that on the 11th day of November, 1823, the defendant subscribed his name and affixed his seal to a paper then in blank, for the purpose of becoming the surety of Campbell Franklin, (one of the obligors) in a bond to the plaintiff for a sum which was not to exceed $600: that at the time he subscribed his name, no sum of money was expressed, and the bond was to have been filled up in a sum not exceeding $600; which paper was afterwards filled up with the sum of $1150, without his knowledge, and not in his presence: that on the morning of the second day of the Court, and before the first cause upon the docket had been called, the defendant offered the said plea, upon the following state of facts verified by affidavit, to wit: that when the office judgment was set aside, the defendant’s counsel was directed to put in a plea of non est factum; but he was at that moment engaged, and put in the plea of payment, to prevent the confirmation of the office-judgment, intending afterwards and at the same time to add the plea of non est factum. He, however, forgot to do so; nor did it occur to him that he had nor done it, until the week before the present Court, and the cause never having been called.

The jury found a verdict for the plaintiff on the plea of payment, and the Court gave judgment accordingly.

The defendant appealed to the Superior Court, where the judgment of the County Court was affirmed ; and the appellant appealed to this Court.

Stanard, for the appellant.

Johnson, for the appellee.

* August 9.

JUDGE GREEN

delivered his opinion, in which the other Judges concurred.

It does 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 signed and sealed a blank paper on that day, which has been since filled up in his absence, and without his knowledge. If *176this 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 infant 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 the affidavit, in respect to the date at which the defendant signed and sealed the paper in question, being corrected.

*

Absent the President and Judge Coalter.