
    *McNeish against Stewart.
    ALBANY,
    Oct. 1827.
    In covenant the single plea of non est factum, admits the breaches.
    Where a defendant, by the mistake of his attorney, pleads a plea which does not cover his defense; and, on trial, a verdict is therefore against him, the supreme court will not, for that reason, grant a new trial.
    But, semble, equity will give relief.
    In an action on covenants of seisin, and against incumbrances in a deed of land, the defendants’ attorney pleaded simply non est factum. At the trial, before Emott, G. Judge, the plaintiff relied on the covenant of seisin only; and rested on proving the deed. The judge ruled that this proof sustained the action, without proof of any thing more. Both parties appeared at the trial; and the verdict was for the plaintiff for the full consideration expressed in the deed, with interest.
    And now, on an affidavit .that the plea was put in under a mistaken supposition by the attorney for the defendant, that the plaintiff, must prove a breach, and the defendant might show, in his defense, any matter which would go to defeat or diminish the amount of the plaintiff’s recovery, and that the plaintiff did not pretend a failure of title as to all the land conveyed.
    A motion was made to set aside the verdict, and let the defendant in to plead an additional plea.
    
      P. F. Hunn, for the motion.
    
      G. O. Belden, contra,
    cited 6 Gwillim’s Bac. 671; 10 Mod. 202, 203; 1 Wils. 98; 9 John. 78.
   Curia.

We cannot receive this excuse, as a ground for the relief sought. Though it appears to be founded in good faith, yet a contrary practice would lead to endless excuses founded in mere pretence. After the defendant has gone to trial upon pleadings which do not cover his defense, and has a verdict against him, it is too late for him to move for an amendment. He must go down to trial prepared. (9 John. 78.)

Note. The plaintiff’s counsel admitted there would be a remedy in chancery, if the plaintiff should go on to collect for the value of more land than was lost by failure *of title; and by his consent, this court directed a rule that execution be perpetually stayed, except as to the sum really flue, the amount of which he showed by affidavit

Motion denied.,  