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money is due, or at a different place (3 Met., 88) ; or a delivery of something other than
money (8 Bush, 6) ; or a composition and discharge by the plaintiff and other creditors of
the defendant for less than was due (8 B. M., 599) ; and, according to a dictum in Ricketts v.
Hall & Long) 2 Busk, 249, "the compounding of a debt between a creditor and his failing
debtor, when no fraud or unfair concealment by the latter is alleged, is now upheld as
being upon a sufficient, valid, consideration."

But a mere agreement to accept is not sufficient (8 B. M., 599) ; nor is an acceptance of
part of the articles agreed to be delivered. 7 J.J. M., 114; and see Taylor v. farmer,
81 Ay., 458-

(3) In Bank of the Commonwealth v. Letcher, 3 J.J. M., 195, a plea that, on the day the
note fell due, the defendant renewed it with the same security, and paid call and interest,
and the bank received the new note and interest in satisfaction of the note sued on, was
held to be insufficient as a plea of accord and satisfaction. But see note (3), below.

(4) It was held that matter of accord and satisfaction, moving from the defendant to
the plaintiff, was pleadable at law ; but that such matter moving from a third person could
only be made available in equity. 3 Afon., 302.

11. Pleas of payment.

(1) According to the common law, in an action of assumpsit or debt, on a simple contract,
payment of the debt, total or. partial, even after it fell due, was specially pleadable, or
provable under the plea of non assumpsit or nil debit (I Ch. PI., 472; 3 Burrow, 1353;
I Dana, 375) ; and it seems clear that, under the Code, a plea of payment total or partial
of such debt, though made after maturity, constitutes a legal defence, and does not give
to eithfer party a right to transfer the issue to equity.

(2) But, in an action of debt on a bond, though the common law allowed a plea of
even a partial payment at or before maturity of the debt, it did not allow a plea of even
full payment after maturity (7 Dana, 446) : the defendant's remedy was in equity. 2
JJ.M., 140.

But an act of 1797 (Af.&B., 322) declared that "m any action of debt on a single
bill, or in debt or scire facias upon a judgment, or in debt upon bond, if, before action
brought, the defendant hath paid the principal and interest due by the defeasance or con-
dition, he may plead payment in bar."

Under that act it was held, I,- that a plea of partial payment after maturity was insuf-
ficient (5 Mm., 496; 7 Dana, 446); and, 2, that, though the statute authorized a plea of
full payment, after maturity, in an action at law, it did not oust equity-jurisdiction to
enjoin a judgment where such payment had not been pleaded. 4 Afon., 175 ; 2 J. J. M.,
140. I have referred to that act and those decisions, chiefly in view of g 1 1 of the Code
as to the transfer of issues to the equity docket ; as, under the Code g 113, subs. 2), total
or partial payment can be pleaded in all cases.

(3) Under a plea of payment, the defendant may prove a transfer of property or the
giving of a new note, if it was accepted as payment (4 Mon., 174; 2 J. J. M., 140;
4 Id., 503; 10 B. A/., 300); and according to Castleman v. Holmes, 4 J. J. M., 3, and
I^tcher v. Bank of the CommonweaWi, I Dana, 82, the continuance of a debt, by a renewal-
note, is a payment of the first note.

(4) Plea that plaintiff had accepted a deed of trust made by defendant for the payment
of sundry debts, including the debt due to plaintiff, is not a defence. 6 Mem., 39.



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CHAP, tv.] THE ANSWER — MATTERS OF AVOIDANCE. 125

1 2. Cancelment of contract.

Plea that the writing sued on had been delivered up and cancelled, before suit was
brought, is a defence. I J.J. M., 431 ; \ B. M., 192. But see Hawkins 6* Armstrong v.
Inflows, 6 Dana, 128.

13. As to impeaching the consideration of written contracts.

According to the common law, a contract under seal (unless it showed that the con-
sideration was executory) imported not only a sufficient, but an unimpeachable consider-
ation, in the absence of fraud or mistake. But an act of 1801 (M.&B., 231) declared
that* in an action " founded on any writing under the seal of the person to be charged
therewith, it shall and may be lawful for the defendant therein, by a special plea, to im-
peach or go into the consideration of such bond in the same manner as if said writing had
not been sealed." And an act of 1812 (M. & B., 343) declared that "all writings here-
after executed, without a seal, stipulating for the payment of money or property, or for
the performance of any other act or duty, shall be placed on the same footing with sealed
writings containing the like stipulations," And those provisions (so far, at any rate, as
they bear on the question of consideration) were substantially re-enacted by chapter 22,
$$ 2 and 3 of the General Statutes.

Under the acts of 1801 and 1812 it was held —

(1) That, as a general rule, in the absence of fraud or mistake, if a writing state what
the consideration is, the obligor is estopped from pleading that there was no consideration,
or that there was a different consideration. 4 Mon., 528-29; 2 J. J. M. 9 420; 3 Id., 167;
9 Dana, 317 ; 2 B. M., 428.

But from that rule there is, at any rate, this exception : as between a vendor and a
vendee of land, a statement in the deed as to the consideration paid is only prima facie
evidence of the fact. Thus, in an action by A against B for $150, being the purchase-money
of land, the receipt of which was acknowledged in the deed, it was held that, without
showing fraud or mistake, A had a right to prove that no part of the money was paid.
Gully v. Grubbs, I /./. M., 387 : and see ace. 5 /./. M., 144. But, though that is the rule in
an action by a vendee against his vendor, upon a warranty of title; in such action by a
sub-vendee against the original vendor, he is estopped from denying that he received the
consideration stated in his deed. Hunt v. Orwig, 17 B. M., 73.

(2) That it is sufficient for the defendant to aver that there was no consideration for
the contract, or to deny that it was given for any good or valuable consideration, or for
any consideration. 3 Bibb, 264; 4 Id., 67; 4 Mon., 531 ; 4 /./. M., 154.

But a plea that the writing was given without any consideration " rendered by the
plaintiff and received by the defendant," or that "no consideration passed from the
plaintiff to the defendant," is insufficient; because "there might have been a sufficient
legal consideration of loss to one party, or benefit to the other to sustain the contract"
(5 Litt., 177; 3 /. /. M., 112); and the addition of the words, "and that therefore the
note was without consideration is a legal non sequiter, and does not help the plea." 3
/./. M., 112.

(3) That, to a plea of no consideration, the plaintiff may tender, or make, an issue
by a reply stating what the consideration was, or traversing the allegation of the answer :
thus, if the answer aver that the consideration was merely voluntary, it is sufficient
for the plaintiff to reply that it was not merely voluntary. 4 Bibb, 67 ; and see 80
Ky., 79-

If the plaintiff traverse the allegation of the answer, the burden is on the defendant to
prove that there was no consideration (4 Mon., 531 ; 1 Mar., 332); but, if the plaintiff's
reply aver a special consideration, the burden is on him to prove it. I Mar., 332.

(4) That a plea, that the consideration has failed, is not sufficient : the facts must
be stated, so that the court may decide whether or not it has failed. I Mar., 602 ; 3
/./. iV.,475.



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126 PLEADINGS. [title VII.

(5) That, unless the defendant alleged fraud and an offer to rescind the contract (Afmirj.
Kelly \ 5 Man., 272; Tinsley v. Ogg, 7 Dana, 385), the statute did not authorize him to
plead, in an action at law, a partial failure of consideration or a partial mistake in executing
a note, I Mar., 168; I J. J. M., 489; 7 Mon. t 412; I Dana, 61 1.

If a vendee was defrauded, his remedy at law (if he had not offered to rescind the
contract) was an action against the vendor. 5 Mon., 274. But, under the Code, he has
the option to bring such action or to plead the fraud as a counter-claim. §§17 and 96.

If there was no fraud, the purchaser's remedy was an action in equity. 7 Mon., 412.
But that rule has been changed by the Code (14 Bush, 172) ; and the defendant must plead
the defence or lose the benefit of it. \ 1 7.

(6) The consideration of natural affection will support a covenant; and the relation of
grand-father and grand-daughter, or of father-in-law and son-in-law, is within the prin-
ciple. 4 Lilt., 207; 4 Mon., 445.

(7) A plea of no consideration does not authorize proof of fraud, gaming, or usury (3
Man., 383-84; 3 J. J. M. f 476); and a plea of fraud, gaming, usury, or any thing else
which admits a consideration in fact, but relies on its illegality or invalidity, can not be
supported by proof that there was no sort of consideration. 3 J.J. M., 476.

(8) Such plea does not authorize proof that the note was delivered as an escrow. Cem-
way v. Bk. U. S., 6 /./. M., 128.

(9) As above suggested, \ 17 of the Code requires a defendant in an ordinary action to
plead any equitable defence known by him to exist. Consequently, decisions under the
old practice, as to the grounds for enjoining judgments at law, are authorities as to what
now constitutes an equitable defence in an ordinary action : as to which (with reference to
the purchase-money of land), see Allen v. Phillips, 2 Lift., 1, holding (1) that a judgment
should not be enjoined because the purchase-money was due on a contingency which had
not occurred ; or, (2) because of an adverse claim against which the vendor has acquired
title by adverse possession; and Lucas v. Chapeze, 2 Litt., 31, holding that a judgment
should not be enjoined where the purchaser agreed to pay, although the vendor might not
be able to convey title when the purchase-money should become due, there being no fraud
■on the part of the vendor; and Carrico v. Froman, 2 Litt., 178, holding that judgment in
favor of a vendor without recourse can not be enjoined on the ground that he represented
his title as being much better than it was, if such representations were made without fraud
and with belief in their truth ; and French v. Howard, 3 Bibb, 301, holding that a general
surmise of a defect of title, without showing in what respect it is defective, is insufficient
to authorize -an injunction; and McKoy v. Chiles, 5 Mon., 260, holding that potential
right of dower in the wife of a person through whom the vendor claims title, if not con-
cealed from the purchaser, is no cause for an injunction after a conveyance and whilst the
vendor is solvent, though it is otherwise where vendee is induced to accept a conveyance
by vendor's promise to procure relinquishment of dower; and Cummins v. Boyle, I J.J. Af.,
480, holding that a defect in title to a small interest in land did not entitle the purchaser
to an injunction [for cases involving similar questions, see 2 Bibb, 566; 4 Id., 215 ; 3 Mon.,
519; 5 M»9 231]; and Murdoch v. Rowlings, 3 Mon., 73, holding that a deficit of 14 acres
in a tract represented as containing 162 acres entitled the purchaser to an injunction to the
extent of the value of the 14 acres; and Lee v. Vaughn, Sneed, 238, holding that the pur-
chaser of a town-lot only 99 feet deep, but represented by the vendor as being 199 feet
deep, was entitled to a rescission and an injunction against the entire judgment [for other
cases as to deficits or excess in quantity see 2 Bibb, 270; 3 Id., 46; 4 Id., 81 ; 2 Mar., 51J?
I Mon., 168; 2 J. J. M., 239; 2 Dana, 265; $Afet., 364]; and Marcum v. Todd, 2 J. J. M„
367, and Edwards v. Strode, Id., 506, holding that a bill for an injunction should pray for
a good title or for a rescission of the contract, as the purchaser can not keep the land and
money too; and Fisliback v. Williams, 3 Bibb, 342, holding that, though, where an exe-
cutory contract provides that the vendor shall not be bound to convey until the vendee



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CHAP. IV.] THE ANSWER — MATTERS OF AVOIDANCE. X2J



pays the purchase-money, the vendee has no right to an injunction if the vendor is able to
convey good title, it is otherwise if he is not able to do so.

14. As to fraud.

A plea averring that the note sued on was given in consideration of a slave purchased
by defendant from the plaintiff; that the slave was secretly unsound, and that the plaintiff
knew And concealed that fact, and showing that, within a reasonable time after discovering
the fraud, the defendant offered to rescind the contract and return the slave, constitutes a
defence in an action at law. 2 B. M., 459.

But fraud causing a partial failure of consideration was not a defence at law, unless
there was an offer to rescind the contract, and return the property ; or an excuse for failing
to return it, such as the death of a slave "shortly " after the purchase (4/./. M., 155) : if
there had been no offer to rescind the contract within reasonable time, the purchaser's remedy
was an action at law for the deceit, or a bill in equity. 3 Afar., 526; 1 Lilt., 63, 176.

As to the mode of pleading fraud there has been a conflict of opinion. According to
Jones v. Greggett, 1 Bibb, 447, and Barlow v. Wiley ', 3 Mar., 457, which were actions at
law ; and Davis x. James 1 ex*rs, 4 J. J* M., 8, and Jasper v. Hamilton, 3 Dana, 280, which
were actions in equity, a plea of fraud must state the facts which constitute the fraud
(and see 13 B. M., 256) ; contra, Sharp v. White, 1 J.J. M., 107 ; Ross v. Braydon, 2 Dana,
161 ; Whitehead v. Root, 2 Met., 588; Evans v. Stone, 80 Ky., 78.

Before the adoption of the Code, a plea of fraud in the execution of a contract was a
defence at law as well as in equity (I Litt., 63, 176) : consequently, such plea in an ordi-
nary action, unless there be others of like character, does not entitle either party to a
transfer of the issue to the equity docket under § 1 1 of the Code. But, as above shown, a
plea of fraud which only partially affected the consideration of tne contract (there being no
averment of an offer to rescind) was not allowable at law, and the defendant was com-
pelled to go to equity for relief; and though, under the Code (8*7) such plea is allowable
in an ordinary action, it entitles either party to a transfer of the issue under \ 1 1 ; and if a
plea of fraud, which fails to show whether it relates to the execution of the contract or to
a partial failure of consideration be allowable, the plaintiff can, by motion, compel the
defendant to show on which ground he relies. Code, \ 134.

1 5. As to mistake.

(1) See note (5), ante, page 126.

(2) It is clear that a defendant who is sued for specific performance, even of a written
contract which is required by statute to be in writing, has the right to allege, and prove
by parol testimony, a mistake in reducing it to writing. But there has been a conflict of
opinion upon the question whether a plaintiff, suing for specific performance of a contract
•which is required by statute to be in writing, can allege and prove by parol testimony that
there was mistake in reducing it to writing, and then have it enforced according to the
parol testimony : concerning which I refer to Warley v. Tuggle, 4 Bush, 168, the opinion
of the majority of the court holding affirmatively, and the dissenting opinion of Judge
Robbrtson (which seems hard to answer), holding negatively ; and to 84 Ky., 250, in
which the opinion of the majority in Warley v. Tuggle was approved.

(3) As to alleging a mistake in the official statement of a public officer, see General
Sta/ules, ch. 81, \ 17; and 83 Ky., 669.

16. Illegality.

(I) A covenant to do several things, some of which are lawful and others unlawful, is
-veid as to the things which are unlawful and good as to the residue. 3 Bibb, 500.

But, unless otherwise provided by statute (such as the statute concerning usury), " the
doctrine is well settled that, if any part of the entire consideration for a promise be illegal,
either at common law or by statute, the whole agreement is void." 2 Met., 164, and cases
cited. But, as to contracts made on the Sabbath, see Campbell v. Young, 9 Bush, 240, and
cases cited.



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1 28 PLEADINGS. [TITLE VII.

(2) A plea that the consideration was illegal is insufficient, for this would be pleading
a deduction of law. Coyle J s exW v. Fowler, 3 J. J. A/., 472; Denton v. Logan, 3 Met.,
434. But see Alfriend v. Hughes, 4 Bush, 40, the decision in which is opposed, not cnly
by that in Denton v. Logan, but by all other decisions under the Code with regard to
stating the facts relied on as constituting an avoidance of a cause of action.

17. Special pleas of non est factum,

(1) In Bank of the Commonwealth v. Curry, 2 Dana, 142, it was said that such a plea
should be construed with peculiar strictness, and is insufficient unless it clearly show a
state of case wholly inconsistent with the presumption that the writing is the act and
deed of the defendant.

(2) A plea showing any material alteration of a writing by the obligee or principal
obligor, after delivery to either, constitutes a defence (2 B. M., 312; 14 Bush, 610; 79
Ky., I) ; and a subsequent promise to pay, without a new consideration, is not binding.
79 Ky., 1.

(3) But delivery of a note to a co-obligor, or to the payee, with blanks to be afterward
filled up, gives an implied authority to the co-obligor or payee to fill them up as he may
think proper (5 Dana, 258; 14 B. M., 16) ; though a plea that, when the note was deliv-
ered to the plaintiff, the sum to be inserted was placed in figures "on the top or margin,"
with the expectation that it would be filled up with that sum ; but that the plaintiff, with-
out the consent of the defendants, tore off said figures and filled up the note for a larger
sum, was held to constitute a defence, 5 Dana, 259.

(4) So, if A sign a note as surety, with an agreement that the principal shall not
deliver it unless another surety be obtained ; yet, a delivery without another surety makes
the note obligatory on A, unless the payee had knowledge of the agreement. Smith v.
Moberly, 10 B. M., 266; Millet v. Parker, 2 Met., 608; 5 Bush, 621.

But, if the names of several sureties be inserted in the body of a bond, delivery of it
does not make it obligatory on any unless it be signed by all. Hall v. Smith, 14 Busk,
604 ; but see Jones, &c, v. Shelbyville Fire, &*c, Insurance Company, 1 Met., 58, the decision
in which is reconciled by the court, in Hall v. Smith, 14 Bush, 612, with "all previous
decisions," upon the ground that, " if the principal obligor erased the names of some of
the sureties inserted in the note when in an incomplete state, without the knowledge of
the obligee, the latter had the right to presume that he had authority to do so, or that it
had been done with the consent of the parties whose names then appeared on the paper."

(5) But, though a bond can not be delivered to a co-obligor as an escrow (2 Met., 608);
a plea that the defendants delivered the bond as an escrow to the clerk of a court who was
authorized to take it, to be binding on them if W should sign and acknowledge it, and
that W did not do so, and that therefore it was not their deed, constitutes a defence.
7 /./. M., 281 ; 2 Met., 614; 5 Bush, 624.

(6) A plea that the defendants signed the bond as co-sureties with T, whose name had
been signed thereto, and that, as they afterward learned, T's signature had been forged,
is not a defence (Terry <&* Belt v. Hazlewood, 1 Duv., 104) ; because it was the negligence
or fault of the sureties in trusting their principal. 14 Bush, 611.

(7) Sureties signing a bond executed by their principal as sheriff are estopped from
denying that he was sheriff. 78 Ky., 491.

(8) Sureties signing a bond which has the effect of a judgment are estopped from ques-
tioning their liability collaterally 7 B. M., 223.

(9) Plea that defendant was induced to become surety by plaintiff's statement that he
held collaterals, though he held none, is a defence. 81 Ky., 527.

(10) Plea that defendant signed the note as surety and delivered it to plaintiff (the
payee), upon his agreement that he would procure the signature of G as co-surety, and
that plaintiff failed to do so, is not a defence ; but the defendant can maintain a counter-
claim against the plaintiff for damages. 2 Duv., 247.



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CHAP. IV.] THE ANSWER — MATTERS OF AVOIDANCE. I2g

(ii) Plea that the defendant was of unsound mind when he executed the writing is
now, though not formerly, a defence. 5 Dana, 308.

(1 a) A note executed by a surety for the purpose of enabling the principal to pay a
particular debt, or to raise money generally, and which is used for the contemplated pur-
pose, is binding on the surety, although the money be obtained, not from the payee, but
from a third person (Smith v. Moberly, 10 B. M., 266; Ward, 6rV., v. Northern Bank of
Ky., 14 B. M., 351; Browning v. Fountain, 1 Duv., 13); impliedly overruling Conway
v. Bank U. S., 6 /./. M., 128, and Gore v. Ross and Pettet, 2 B. AL, 299.

But, A having signed a note, payable to a bank, as surety for B, to enable him to raise
money for the support of his family, and B having passed the note to C, in discharge of a
debt, it was held that A was not liable ; the court saying that the fact that the note was
payable to a bank was sufficient notice to C " that the paper was- intended to raise money
upon it." Russell v. Ballard, 16 B. M., 201.

18. As to limitation.

(1) As a general rule, limitation must be pleaded ; because, though the period of lim-
itation may have expired, the plaintiff may have been exempted from its operation by
disability, or the defendant may have promised to pay, or may have absconded after
making the contract. 2 Met., 146; 2 Bush, 555 ; 5 Id., 86. But a petition which shows*
that the period of limitation has expired is subject to demurrer, if it also show that the
plaintiff is not within any exception, or if it be founded on a statute the enacting clause
of which prescribes a limitation without allowing any exception (2 Met., 146; 4 Id., 321-
22; 84 A>., 379) ; and, according to a dictum (see 4 Met., 322) in Wintersmith v. Poynter, 2
Met., 460, a petition on the act of 1856 must show that the action was brought within six
months after the cause of action accrued, although the right to sue is given by the first
section and the limitation is prescribed by the third section ; that dictum is opposed to the
general rule. See, however, note (/) to Form 64, post, page 602.

(2) An answer pleading limitation presents a defence, though admitting that the debt
has not been paid. 6 Bush, 475.

(3) As to the mode of pleading limitation.

In actions on contracts, it is sufficient for the defendant, in any case, to aver that the
cause of action did not accrue within five years [or other period of limitation] before the
commencement of the action (2 Mar., 564) ; though, where the statute begins to run from
the time of the promise sued on, it is sufficient for the defendant to aver that he did not
promise within five years before the commencement of the action. 2 Ch. PI., 481, note u ;
2 Mar., 564; 7 J. J. M., 500. And in Ditto v. Young, 3 /. /. M., 187 (which was an
action in equity, to which limitation applied only by analogy), a plea that the de-
fendant " relies on the lapse of time " was held to be sufficient. And in an action against
a city to recover taxes alleged to have been illegally collected, which was limited by the
city-charter to six months, an averment that the defendant did not receive the money within
six months before the commencement of the action, with the statement that "it pleads
and relies upon the statute of limitations in such case made and provided," was held
to be a sufficient plea of the statute of six months. City of Covington v. Hoadley, cVr., 83
A>., 444.

But, in an action against partners, a plea by one that he did not promise (or that the cause
of action did not accrue against him) within five years would be insufficient ; "because an
assumpsit, within that time, by any one of the partners, might be the assumpsit of all."
Iff.M., 262.

And a plea which shows that, though the present action is not, the only appropriate
action would be, barred by limitation is insufficient. I Dana, 337.

19. Plea of covenants performed.

( 1) This plea only applies where the defendant has covenanted to perform some act,



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