coke a WHELPDALES case Trin James in the king bench where two be joint bind in  a bind neither can say that the bind be not his deed but may plead in  abatement the nonjoinder of his coobligor coke report b er p in all case where  the bind be voidable and so remain at the time of the plead as in the case of  infancy and duress the obligee can plead non be factum where a bind or other  write be by Act of parliament enact to be void the obligor can plead non be  factum but must plead special where the deed be once the party deed but before  action bring become no deed either by rasure or alteration c the defendant may  plead non be factum a action of waste be not maintainable where the lessee  repair before action bring yet the defendant ought to plead the special matter  if the obligee or the husband of a feme covert obligee disagree to the bind  the obligor may plead non be factum in debt by Whelpdale against Whelpdale  which begin hill Elizabeth rot the plaintiff declare on a bill Obligatory make  by the defendant to the plaintiff the defendant plead non be factum and the  jury find that the bill be a joint bill make by the defendant and another to  the plaintiff and if on the matter the bill mention in the declaration be the  deed of the defendant the juror pray the advice of the court and it be adjudge  that the plaintiff shall recover and in this case four point be resolve when  two man be joint bind in a bind although neither of they be bind by himself  yet neither of they can say that the bind be a roll   light a Cr James dyer pl  Doct pl say side a not his deed for he have seal and deliver it and each of  they be bind in the whole and therefore if they be both sue and one appear and  the other make default and by process of law be b Jones b outlaw he who appear  shall be charge with the whole as appear in e e but in the case at bar he may  have plead in c sand Doct pl side   light a h a Cr Elizabeth Ven Lutw c  abatement of the writ but can plead non be factum a in all case of a joint  obligation or deed or a joint contract in write or by parole if one only be  sue he must plead the matter in abatement and can take advantage of it  afterward upon any other plea or in arrest of judgement or give it in evidence  unless indeed it appear on the face of the declaration or any other plead of  the plaintiff that another joint seal the bind with the defendant and that  both be still live Vid sergeant williams note to Campbell v Vaughan sand b and  Richard v heather barn Ald a it be resolve that in all case when the deed be  voidable and so remain at the time of the plead as if d Plowd b h a more Inst  Doct pl h a h b d a infant seal and deliver a deed or a man of full age by e h  a h b Inst e duress in these and the like case the obligor can plead non be  factum for it be his deed at the time of the action bring and ought to be  avoid by special plead with conclusion of judgement si action h a b when a  bind or other write be by a Act of parliament enact to be void the party who  be bind can plead non be factum f Doctrin pl hob h Fitzgib   b vin ab faits n  a f but in construction of law the deed be to be avoid by the party who be  bind by it by plead the special matter take advantage of the Act of parliament  for although the Act make the bind or other write void yet thereto the law do  tacit require order and manner which the obligor ought to follow as if a bind  be make to a sheriff against the statute coke b of g hob   b Br non be fact e  b style Plowd b Doct pl vent sand g h cap or to one against the stat of  Elizabeth cap of usury in these and other like case the obligor ought to plead  the special matter with con coke report b er p clusion of judgement if action  and not to plead non be factum and therewith agree a   b Br non be fact   b  Fitzherbert Det blow b a b dyer pl a e b e Br non be factum against the  opinion of Montague blow command in dive and Manninghams case in all case when  the bind be b   a say Dall pl pl Doct pl Cr Elizabeth owe Bulst dyer pl   more  b once his deed and afterward before the action bring become no deed either by  rasure or addition or other alteration of the deed or break off the seal in  this case although it be once a deed yet the defendant may safe plead non be  factum for without question at the time of the plea which be in the present  tense it be not his deed h dyer in a action of debt on a bind against Haywood  the defendant plead non be factum and before the day of appearance of the  inquest c Doct pl roll Rep Bulst die pl c rat do eat the label by which the  seal be fix by the negligence of the clerk in who custody it be b such a  accident will not now be hold to vacate a deed Vid post note Pigotts case   b  b the justice charge the jury that if they shall find that it be the deed of  the defendant at the time of the plea plead that they shall give a special  verdict and so they do but if one commit waste and before any action bring the  lessee repair and afterward the lessor bring a action of d   light a Doct pl  die pl roll Com dig pi d waste there the action be not maintainable because  the juror ought to view the waste but the defendant in the same case ought to  plead the special matter and can plead that he do no waste for the entry be in  the preterperfect tense sure quod non fecit empty and therewith agree  Elizabeth dyer and so a good diversity and the quere mark dyer e dyer pl Doct  pl e well resolve and if a bind be deliver to another to the f   b Doct pl Cr  Elizabeth and die pl c Leon n Benl pl salk f use of the obligee and it be  tender to he and he refuse it now the delivery have lose its force and the  obligee can never after agree to it and therefore the obligor may say it be  not his deed against the opinion in Elizabeth dyer so if a bind be make to a  feme covert and the husband disagree to it the obligor may plead non be factum  for by the refusal the bind lose its force and become no deed and so the  disagree opinion in h a dive and Manninghams case h a b Elizabeth dyer g dyer  pl c g a and other book be well reconcile c there be much inconsistency in  some recent case as to what may or may not be give in evidence under the plea  of non be factum the object of this note be to attempt to establish the follow  as the correct rule of law upon this subject whatever tend to show a invalid  or defective execution of a deed at the time of plea plead may be give in  evidence under the plea of non be factum but whatever impeach the deed by  reason of the matter or consideration thereof whether such matter or  consideration render the deed void by the policy of the commonlaw or by the  express provision of the statute law must be special plead and such plea ought  to conclude with I and so the say deed be void and not with et such non be  factum except in these case where by crave oyer or by the plaintiff plead the  exception to the deed appear full upon the record in which case the defendant  may demurrer or after non be factum plead may move in arrest of judgement thus  it may be show under non be factum that the bind be deliver as a escrow to a  three person for the delivery which be part of the execution be impeach so it  may be show that it be obtain by fraud or that the obligor be a feme covert  Com dig pleader wonder or that the deed be make by a lunatic Yates v large  Italian snake strange or that the obligor be make to execute the bind while  drink bull c coke report b er p n p for in all these case it be clear not the  matter or consideration of the deed that make it void but the imperfection of  the execution so also where the deed be avoid by erasure alteration addition c  it may be show in evidence under non be factum text sup et Vid Powell v Duff  camp for the objection be not that the matter or the consideration of the need  make it void but that the party never execute the deed produce in evidence nor  be it inconsistent with the rule suggest that under non be factum advantage  may be take of the want of a stamp for the act do not make the deed void but  mere prevent its be give in evidence and so no execution of the deed declare  on can be prove so also if the plaintiff prefert can be prove as state Com dig  pleader wonder or vary from the declaration either by a misstatement or on  account of a covenant constitute a condition precedent not have be state  advantage may be take of the defect under non be factum Howell v Richard two  east and the authority cite in I Chitt plead that edition for the deed produce  must be take to be a different deed from that declare upon and therefore there  be no proof of the execution of this latter but where a bind be give with a  condition in restraint of matrimony or where the bind be give to compound a  felony and so in both case void at commonlaw a special plea be necessary and  the fact can be give in evidence under a plea of non be factum Colton v  Goodridge black Rep Harmer v wright stark n p Harmer v bow Chit Rep so where a  bind be void by statute by reason of interest Gam c a special plea be  necessary Lord Bernard v Saul I strange Com Dig Pleader wonder sergeant  William note ferral v shean sand a so also if a bailbond be not make accord to  the stat Henry c a special plea be necessary sergeant williams note postern v  hanson sand the case of Thompson v rock m S be at variance with these  principle in that case it be hold that upon a plea of non be factum the  defendant may show at the trial that the bind be date and execute on a day  subsequent to the return of the writ the court seem to have decide on the  ground that a plea show these fact must have conclude with et such non be  factum as it be say in hob and inasmuch as a special non be factum be never  plead the defendant may plead non be factum general this it be submit be a  mistake the proper conclusion will not have be et such non be factum but will  have be as in the precedent pullein v Benson I l raym et scriptm mock c vacuum  et no one execution in lege to be Vid also the same manner of plead Lawson v  haddock vent Lenthall v cook sand brook in his ab non be factum say express  that the plea must conclude and so the obligation be void and not non be  factum where the obligation be take in any other way than that prescribe by  the statute and Vid dyer b   b Mr I Dampier in the same case observe if the  bind when execute be void ab beginning the defendant may say non be factum  general this dictum be at complete variance with former decision on the  subject and if it be to be consider as law non be factum may be plead in every  case where the bind be take contrary to the provision of the stat h for all  such bind be utter void so also in all bind void by the provision of any  statute as in case of usury game c such plea will be sufficient for such bind  be clear void ab beginning so also where the bind be void by the policy of the  commonlaw but it have be almost uniform hold that the matter in avoidance of  the bind must be plead special by the defendant unless indeed such matter  shall otherwise appear on the record Colton v Goodridge Harmer v bow where sup  Collins v Blantern will and the other authority cite above with respect to  such defence arise from infancy and duress as show that the deed be voidable  they be usual special plead but as they impeach the deed because under such  circumstance the party be not bind by the execution and not because the matter  or consideration of the deed be illegal by the law they be clear in avoidance  of the execution and therefore such a plea be a special non be factum and  perhaps accord to Thompson and rock a general non be factum will now be  sufficient but this seem doubtful for the reason assign in the text supr res  with respect to the latter part of the rule suggest above videlicet that if  the illegality otherwise appear upon the plead it need not be special plead  the note of sergeant William to ferral v shaen sand a seem to prove the coke  report a er p contrary the authority cite be dante v courier side and I hawk p  c but as it be observe by the editor of the edition of the first authority do  not warrant the conclusion and Hawkins cite no case in support of his position  on principle it will seem quite unnecessary to require a plea which will be  mere a repetition of what be already on the record and which therefore can  give no additional information to the court beside upon what principle shall  there be a different rule as applicable to the stat h in action upon sheriff  bind if the matter in avoidance be show in the declaration or if it appear on  crave oyer of the bind and condition the defendant may demurrer or move in  arrest of judgement Samuel v Evans TR with respect to the conclusion of the  plea beside the authority cite above the reader be refer to the judgement of  Wilmot CJ in Collins v Blanterne will in a book of great utility Mr Chittys  treatise on plead vol I p this last case be refer to as prove that what make a  bind void by the commonlaw ab beginning may be give in evidence under non be  factum on inspect the case it appear there be a plea of non be factum and  issue thereon and also a plea state special the matter in avoidance of the  bind and the case be decidedupon demurrer to this special plea so far from the  case be a authority for Mr Chittys position it be quite the reverse the c I in  deliver the judgement of the court observe the plea be right plead and  conclude very proper and so the say bind be void it seem to I that non be  factum can not have be proper say at the conclusion of this plea after the  special matter before allege non be factum mean nothing but that I I do not  seal and deliver the bind