Brocaw v. Marlatt

The defendant has pleaded non est factum, per fraudem and usury, and has subjoined a notice that under the plea of non est factum he will give evidence of specified facts of usury and fraud. A defendant may exhibit his defence either by way of special plea, or by way of notice under the general issue, but in the case of Chew v. Egbert, and of the State Bank at Elizabeth v. Chetwood, it was held by this Court that he cannot be permitted to exhibit his defence in both modes at the same time. The present case *109is within the rule settled by those decisions, and the motion must prevail so far at least as to compel the defendant, as was done in the first mentioned case, to elect by which ho will abide, his pleas or his notice.

The defendant elected to strike out his plea of usury and abide by his notice in that respect; to abide by his plea of per fraudem, and strike out the matter of fraud alleged in his notice.