
    [Lancaster,
    May 26, 1823.]
    STOEVER against WEIR.
    IN ERROR.
    A special plea of fraud and covin to debt on a single bill, is in nature of a special non est factum: and if the plaintiff reply to such plea, that it is his deed, on which issue is joined, and a verdict given for the plaintiff, the judgment is regular.
    Error to the Court of Common Pleas of Lebanon county.
    Debt by Thomas Weir, the plaintiff below, against Adam Stoever, the defendant below, and narr on a single bill for the payment of ¿53. The defendant pleaded, that the said writing in the said declaration mentioned, was obtained from the said Adam Stoever, by the said Thomas Weir and others, in collusion with him, by fraud, covin, and misrepresentation; that is to say, by the said Thomas Weir, and others in collusion with him, the said Thomas Weir, falsely and fraudulently representing to him the said Adam Stoever, that the said writing obligatory, was a receipt for the payment of money by the said Thomas Wzir to a certain Thomas Brooks, and the said Thomas Weir in collusion with others, falsely and fraudulently requesting the said Adam Stoever, to sign the same as and for á witness, that the said money was paid by the said Thomas Weir to the said Thomas Brooks, and in confidence of such representation, the said writing obligatory was executed, to wit, at the county aforesaid; wherefore, the said Adam saith, that that writing was and is void in law, and this he, the said Adam, is ready to verify, wherefore he prays judgment, if he ought to be charged with the said debt by virtue of said the writing, &c.
    And the said Adam Stoever, for further plea in this behalf saith, that he ought not to be charged with the debt aforesaid, by virtue of the supposed writing obligatory aforesaid, because he says, that the same was obtained from him, the said Adam Stoever, by the said Thomas Weir and others by fraud, covin, and misrepresentations, to wit,-at, &c.: wherefore the said Adam saith, that the said writing in the said declaration mentioned, was, and is void in law, and this he, the said Adam, is ready to verify. Wherefore, he prays judgment, if he ought to be charged -with the said-debt by virtue of the said writing, &c.
    The record then contained the following entries:
    
      “ Replication that it is his deed. Issue and rule for trial.”
    The jury found a verdict for the plaintiff, and judgment was entered thereon.
    The error now relied on was, that no issue was joined in the cause.
    
      Wright, for the plaintiff in error,
    insisted that there was no issue joined in the court below, and therefore, the verdict and judgment were irregular.. Admitting that the defendant might have pleaded non est factum, and given in'evidence the matter specially pleaded, yet he did not plead non est factum, nor is the plea so to be considered. The rule is, that where the matter of the plea confesses the cause of action but avoids it, the defendant may plead specially, though he might have given it in evidence. 5 Bac. Ab. 372. Cro. Eliz. 871. Salk. 344. Ld. Raym. 87. 1 Chit. 478, 479. The plaintiff, therefore, in his replication was bound to answer the facts set forth in the plea, and the replication that it was the defendant’s deed, was no answer, and formed no issue.
    
      Weidman and Norris, contra,
    contended, that the defendant’s plea amounted to non est factum, and the word “issue,” was equivalent to an order to the prothonotary to make up the issue. This, by the 62d rule of the court below, he was authorized to do, if there had been no replication. But the matter stated in this plea, if true, rendered the deed void ah initio, and was evidence on non est factum. 1 Chitt. 478. Th.e plea was, therefore, in effect, non est factum, and was so considered by both parties in going to trial. The replication was, therefore, appropriate, and the issue regularly joined.
    
      Wright, in reply,
    admitted, that if no replication had been put in, the prothonotary might have entered a replication, and joined issue: but here a replication was put in, and therefore, the prothonotary had no power to act.
   The opinion of the court was delivered by

Tilghman, C. J.

This is an action of debt on bond, in which Thomas Weir, the defendant in error, was plaintiff in the Court of Common Pleas of Lebanon county. .The' defendant pleaded a special.plea, alleging fraud in the plaintiff, in consequence of which, the bond was void, and concluded with av.erification. The plaintiff replied, “that it was the deed of the defendantand thereupon, issue was joined, and the jury found for the plaintiff. The error assigned is, that no issue was joined, a most ungracious defence after trial of the merits. In order to facilitate the trial of causes, there is a rule of the Court of Common Pleas, by which', upon a plea entered, the prothonotary .may of course put the cause to issue, and enter the proper replication, and other pleadiugs for that purpose; provided that the act of the prothonotary shall not prejudice either of the parties — each party shall have it in his power to enter other pleas, or demur, giving notice in writing to the adverse party, at least 10 days before the trial.” Now, by virtue of this rule, if there had been no replication the prothonotary might have put the cause to issue. This the defendant confesses, but says, that inasmuch as the plaintiff put in a replication for himself, the prothonotary had no power to act in the matter. It is clear, however, that both parties considered the cause as being at issue, and went on to trial. And it is our opinion, that it was substantially at issue, because the defendant’s plea is in nature of a special non est factum, and might have concluded, and so it is not his deed, — then when the plaintiff replied, “ that it is his deed,*’ and issue was joined, we will consider the plea in the same light that both parties considered it, that is, as a plea of non est factum. It is the opinion of the court, therefore, that the judgment should be affirmed.

Judgment affirmed,  