plea of warranty with a sample, and a plea on an Pleading. implied warranty of good merchantable quality, will be disallowed together(s). This provision, however, is not intended to prevent inconsistent defences from being pleaded(t), but to prevent two defences, which are substantially the same, though different in form, from being pleaded together.

Disability to contract is a good defence, and Disability. must, of course, be pleaded specially. To infancy, the plaintiff may reply that the goods sold were necessaries (u), or that the defendant ratified the contract in writing, on obtaining full age (x). To coverture (pleaded in bar), the plaintiff may reply, that the vendee acted by her husband's authority, or that he subsequently confirmed the contract; and such a replication is no departure, though the husband be not named in the declaration (y): or, the plaintiff may reply that the husband was abroad at the time of making the con

(s) Steill v. Sturry, 3 Dowl. P. C. 133.

(t) Dueer v. Tribuer, 3 Dowl. P. C. 133; and see per Bosanquet, J., id. 135; Wilkinson v. Sewell, id. 564.

(u) See above, p. 16.

(x) See p. 21. 9 Geo. IV. c. 14, s. 5.

(y) Prince v. Brunatte, 1 Bingh. N. S. 435. The authority of the husband will be presumed in the case of necessaries (though the presumption may be rebutted), but must be proved, in other cases, to have been expressly or impliedly given. See above, pp. 26, 30.

Pleading.

Statute of
Frauds.

tract(); but the absence of the husband is no answer to a plea in abatement for nonjoinder(a). To a plea of non compos, the plaintiff may reply necessaries (b). To plea of attainder, he may reply a removal of the disability, by pardon, or by the full term of punishment completed (c). To plea of alien enemy at the time of making the contract (d), the plaintiff may reply a licence from the crown (e).

The Statute of Frauds, obviously, can be a ground of defence only to an action for not accepting, and not to an action for goods sold; for if there is a delivery and acceptance, it comes within one of the saving clauses of the statute. It seems that, if defendant pleads that there was no agreement in writing to satisfy the statute, the plaintiff's replication may take issue generally, and need not set forth the agreement (ƒ). To rebut

(z) See above, p. 34.

(a) See p. 40.

(b) Baxter v. Earl of Portsmouth, 5 B. & C. 170. See above, p. 42.

(c) See p. 44.

(d) If the plaintiff has become alien enemy since the commencement of the action, it ought to be pleaded in bar of the further maintenance of the suit. Le Bret v. Papillon, 4 East,

502.

(e) See above, p. 48.

(f) Wakeman v. Sutton, 2 Ad. & Ell. 78. Though a contrary opinion had been intimated; Lowe v. Eldred, 1 Cr. & Mees. 239; S. C. 3 Tyrwh. 234.

the defence, the vendor may show, that the goods Pleading. did not exceed £10 in value; or, that there was an acceptance of part of the goods by the purchaser to satisfy the statute; or, that there was earnest given, or something in part payment (g).

To a special action for not accepting, the de- Fraud. fendant may plead, that the transaction was fraudulent on the part of the vendor or his agent (h), that there was misrepresentation or concealment of something material(); or, that the transaction was immoral(k); or, that it was illegal, on the Illegality. ground of being contrary to the provisions of a statute(), or as being against public policy(m); or, that the plaintiff has made default in the performance of a condition precedent (n).

In an action for the price of goods sold and delivered, the defendant may show that the goods have not been delivered (o); or, that the sale was Sale on on credit, and that the time of credit has not expired (p). If the defendant relies on the bad Bad quali

(g) See above, p. 49–67.

(h) See p. 129-135.

(i) Icely v. Grew, 6 C. & P. 671; Hill v. Gray, 1 Stark.

N. P. C. 434.

(k) See above, p. 140.

(1) See p. 84, and p. 95.

(m) See p. 141–147. (n) See

p. 230-239.

(o) See p. 253. This need not be pleaded specially; for non assumpsit will operate as a denial of the delivery in fact.

(p) It has been held that this defence ought to be specially pleaded; Edmunds v. Harris, 4 Nev. & Man. 182; S. C. 6 C.

U

credit.

ty.

Payment.

Pleading quality of the goods, this must be pleaded specially, where there has been a stipulated price (q); but it seems clear that the defence might be given in evidence, without being pleaded, where the plaintiff sues on the quantum valebant (r). If the defendant has paid for the goods, he must plead the payment, and that the plaintiff accepted it in full satisfaction(s). If the defendant relies on a set-off, it seems, that, under the New Rules, he must always plead the set-off, and that he cannot (as formerly) avail himself of a notice of set-off given with the general issue (t). If the defendant pays money into Court, in respect of part of the

Set-off.

Payment

into Court.

& P. 547; but it seems that this decision cannot be supported. See per Parke, B., Taylor v. Hilary, 1 Cr. Mees. & Rosc. 743; Knapp v. Harden, Gale's Rep. 47. Supra, p. 252.

(q) Roffey v. Smith, 6 C. & P. 662. Mees. & Rosc. 103, 111.

See Mills v. Oddy, 2 Cr.

(r) For, although it is declared that "performance," i. e. by the defendant, shall be pleaded, it is not said that "non-performance" by the plaintiff shall be pleaded in all cases; and this seems necessary only in special contracts. In the common indebitatus count the promise to pay is alleged to be in consideration of "being indebted;" and therefore the plea of non assumpsit would seem to put in issue every fact which tends to create the debt. See Bosanquet's New Rules, p. 46. And see per Alderson, B., 6 C. & P. 545, 546.

(s) Yet, although no plea of payment be put on the record, the Court (it seems) will admit evidence of payment in reduction of damages, though not in bar of the action. Shirley v. Jacobs, 2 Bingh. N. S. 88.

(t) Vid. supra, p. 279. Sed qu.?

plaintiff's demand, he must plead such payment Pleading. according to the form prescribed (u).

(u) Rules of Pleading, Hil. T. 4 Will. IV. § 17. The form is as follows::

C. D.

ats. A. B.

his attorney, [or,

"in per

The defendant by
son," &c.] says, that the plaintiff ought not further to
maintain his action, because the defendant now brings
into Court the sum of £- ready to be paid to the
plaintiff. And the defendant further says, that the plaintiff
has not sustained damages [or, in actions of debt," that he
is not indebted to the plaintiff"] to a greater amount than
the said sum, &c. in respect of the cause of action in the
declaration mentioned: and this he is ready to verify.
Wherefore he prays judgment if the plaintiff ought
further to maintain his action.

See Sharman v. Stephenson, 3 Dowl. P. C. 709; S. C. 2 Cr. Mees.
& Rosc. 75; Coates v. Stephens, 3 Dowl. P. C. 784. When
there are distinct defences to certain portions of the demand, (as
may be the case when the particulars claim several demands,)
the proper
course is, first to exhaust all the defences to the other
portions of the demand, and then to plead the payment of money
into Court generally to the residue. See Bosanquet's New Rules,
p. 175.