Neale v. Fowler

Rartol, C. J., delivered the opinion of the Court. The only question raised by this appeal is, whether the paper offered in evidence, and set out in the bill of exceptions, was admissible under the pleadings. The declaration contains three counts; all of them state the cause of action to be a writing obligatory, whereby the defendant acknowledged himself to be bound to the plaintiff, in the sum of $950, to be paid on demand. Issue was joined on the pleas of non est factum and payment.

The plea of non est factum imposes on the plaintiff the onus of proving the execution and delivery of the bond sued on. Union Bank vs. Ridgely, 1 H. & G., 416 ; Edelin vs. Sanders, 8 Md., 118 . “ In debt on bond, or other specialty, when the deed is the foundation of the action, the plea of non est factum is proper, when the plaintiff’s profert cannot be proven as stated.” 1 Ch. Pl., 483. The rule is that the allegata and probata must agree; a party cannot declare upon one written instrument, or cause of action, and give in evidence another and different instrument of writing. “ If there be a substantial variance between the instrument set out in the narr. and that offered in evidence, such variance may be taken advantage of under the plea of non est factum, and will be fatal to the plaintiff’s suit.” 1 Ch.

Pl., 305, et seq. It is not necessary to set