BURTON v. KELLUM, 1 Del. Cas. 83 (1795)

Wilson’s Red Book, 94[*]

WOOLSEY BURTON v. THOMAS KELLUM.[1]

Court of Common Pleas of Delaware, Sussex County.
November, 1795.

[*] This case is also reported in Bayard’s Notebook, 128.

[1] The defendant’s name is spelled “Killam” in the report of this case in Bayard.

Covenant. We proved defendant sick of a mortification in hi leg.

BUT, PER CURIAM, defendant’s oath is not necessary in this cause; swear the jury.

Bayard for plaintiff proved and read a lease by indenture; the covenants were, first for payment of rent, second for redelivery of premises; and proved another person in possession; and said it lay upon defendant to show payment and redelivery.

Wilson. The plea is “non infregit conventionem,” which is a negative plea; defendant is therefore not obliged to prove it. This

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plea was improper and plaintiff should have demurred, but it is now too late. He has brought himself into this difficulty that he must prove the breaches laid in the declaration, but they being in the negative it is impossible to prove them, unless a witness could be produced who had guarded the defendant ever since the contract. It is true if we took no advantage of plaintiff in this, it would be good after verdict; but that he ought not to have without proof. Cited 1 Morg.V.M. 198.

Bayard urged it was taking advantage of our own wrong: and that the verdict would cure it, etc.

PER CURIAM. BASSETT, C. J.

If this plea is wrong, the courts have been five hundred times since my remembrance, for I think I have known non infregit conventionem
put in that many times. I very much doubt Mr. Morgan’s law unless we had his authorities. (Here I offered to show the same law in Comyn’s Digest, and opened the place.) But it is a rule that he who commits the first fault in pleading, judgment shall be against that man. Suppose a good plea and bad declaration judgment shall be against the plaintiff, but if the narratio is good, plea bad, and replication good, judgment shall be against the defendant and so on!! (Here the Chief Justice cited authorities from his notebooks on this subject.) In this case the narratio is good, the plea acknowledged bad, then your verdict will be accordingly, and after verdict the record will be cured.[2]
(See 1 Str. 303 confirmatory of this.)

Verdict for plaintiff. £___[3] damages. N. B. The jury said they were entirely governed.

[2] The following lines in the account of this case, being at present illegible in Wilson’s Red Book, are taken from the copy of Wilson’s report found in Wells’ Notebook, 103.

[3] Blank in manuscript.