
    No. 8252.
    Hine v. Shiveley.
    Pbomissoby Note. — Non Est Factum. — Pleading.—An answer to an action upon a promissory note, concluding “ and lie” (defendant) “says that he did not execute said note in manner and form as set out in said plaintiff’s complaint herein, and that the same is not his note,” is sufficient to constitute a good general plea of non est factum, although the facts previously stated in the Answer are insufficient to constitute a good, special non est factum or an answer in confession and avoidance.
    From the Elkhart Circuit Court.
    
      W. L. Sionex, for appellant.
    
      J. 8. Frazer, W. I). Frazer, 8. J. North and E. W. Higbeef for appellee.
   Franklin, C.

Appellant sued appellee on a promissory note. An answer was filed in five paragraphs, the first being a denial. A demurrer was filed separately to the second, third, fourth and fifth paragraphs, which was sustained as to the fourth and fifth and overruled as to the second and third.

Errors have been assigned upon the overruling of the demurrer to the second and third paragraphs of the answer.

Appellant in his brief only complains of the overruling of his demurrer to the second paragraph. The. other specification of error is therefore waived.

The first part of the second paragraph professes to set out the facts, at some length, under which the execution of the note was procured, which, appellant insists, does not amount to a positive denial of the execution of the note. The last clause in the paragraph reads as follows: “And he says that he did not execute said note in manner and form as set out in said plaintiff’s complaint herein, and that the same is not his note. Wherefore,” etc. These allegations are not made to depend on the former statement of facts, but are separate and independent, and, we think, contain sufficient averments to-constitute a good general non est factum answer, and it is immaterial whether or not the previous facts stated constituted a good special non estfaehm, or an attempted-answer in confession and avoidance; as, without all that, there was enough in the paragraph to constitute a good defence; and, as no motion was made to separate the causes of defence into separate paragraphs, or to strike out the objectionable part, we think there was no error in overruling the demurrer to -it.

The judgment below ought to be affirmed.

Peb Cubiam. — It is therefore ordered, upon the foregoing opinion, that the judgment of the court below be and it is in all things affirmed, with costs.

Woods, J., did not'participate.  