OBS. ited time; Thimbleby v. Barron, 3 M. & W. 210; 2 Wms. Saund. 150 a; [2 Chitty Contr. (11th Am. ed.) 1147, and note (g) and cases cited;] unless there is a condition that it may be so pleaded in case, an action be brought within the time. Gibbons v. Vouillon, 8 C. B. 483; Belshaw v. Bush, 11 ̊C. B. 191; Keyes v. Elkins, [5 B. & S. 240;] 34 L. J. Q. B. 25; Walker ». Nevill, [3 H. & C. 403;] 34 L. J. Ex. 73 ; [2 Chitty Contr. (11th Am. ed.) 1147, and note (f) and cases cited; Winans v. Huston, 6 Wend. 471; Pearl t. Wells, 6 Wend. 291; White e. Dingley, 4 Mass. 433.] 1. Plea of Release. (h) That after the alleged claim accrued, and before this suit, the plaintiff, by deed, released the defendant therefrom. [1a. Plea of Release to the further Maintenance of the Action. Tetley v. Wanless, L. R. 2 Ex. 275.] 2. Replication to Plea of Release. (i) That the alleged release is not the plaintiff's deed. 3. Replication that the Release was obtained by Fraud.(k) That the said release was procured by the fraud of the defendant. 4. Plea that the Manager of a Banking Company released the Debt, which the Company (the Plaintiffs) afterwards ratified. Bell v. Tuckett, 3 M. & G. 783. 5. Plea of the Release of a Co-contractor. (1) [Thompson v. Lack, 3 C. B. 540; North v. Wakefield, 13 Q. B. 536; Price (h) C. L. P. Act, 1852, sch. B, 42. The plea should be pleaded to part only of the demand if the whole claim be not admitted, and of course the plea must then be confined to the part confessed. If this plea be pleaded to a count on a bill, add, "and after the acceptance" [or "indorsement," as the case may be] of the said bill. See Ashton v. Freeston, 2 M. & G. 1. A release by deed must be expressly pleaded as a release, or so much of the deed as operates as a release must be set out. Wilson v. Braddyll, 9 Ex. 718. (i) C. L. P. Act, 1852, sch. B. 50. This replication in general merely puts the execution of the deed in issue. If the release be by one of several plaintiffs, the proper replication would be to deny that he released in manner and form alleged; per Parke B. Wilkinson v. Lindo, 7 M. & W. 86; North v. Wakefield, 13 Q. B. 536; a covenant not to sue would be no defence in such case. Walmsley v. Cooper, 11 Ad. & E. 216. When to new assign to a release, Jubb v. Ellis, 15 L. J. Q. B. 94. (k) C. L. P. Act, 1852, sch. B, 51. (1) A release to one of several joint and several debtors is a discharge of all; Co. Litt. 232; Cocks . Nash, 9 Bing. 431; Nicholson v. Revill, 4 Ad. & E. 675; Brooks v. Stuart, 9 Ad. & E. 854; [ante, 455;] but a covenant not to sue is not so in general. Dean v. New hall, and Twopenny v. Young, supra, Obs.; [ante, 455.] Release by giving time on a guaranty. Howell v. Jones, 1 Cr., M. & R. 97; and see Combe v. Wolf, 8 Bing. 156. By releasing the principal. Barr v. Cooper, 8 M. & W. 751; ante, “Guaranty." Release by appointing a joint debtor executor. Chetham v. Ward, 1 B. & P. 630, and see there form of plea to a bond; [2 Chitty Contr. (11th Am. ed.) 1156, note (m); Chitty Pl. 60, and cases in note (c).] Release of a note by giving time to one for whose accommodation defendant had made it. Smith v. Winter, 4 M. & W. 454. Release by withdrawing an execution which plaintiff had against the principal debtor. Mayhew v. Crickett, 2 Swanst. 185. Parol consent on the part of the defendant, that the release of the other joint debtor should not operate to release him, cannot be pleaded to a release under seal; Cocks v. Nashi, 9 Bing. 431; but such a consent under seal may; Cowper v. Smith, 4 M. & W. 519. Release of one joint debtor by proceeding to judgment against the other. King v. Hoare, 13 M. & W. 494; [Maule J. in Bell v. Bankes, 3 M. & G. 267; Bayley J. in Lechmere v. Fletcher, 1 Cr. & M. 634; Story J. in United States v. Cushman, 2 Sumner, 437-441; Trafton v. United States, 3 Story, 646; Pierce v. Kearney, 5 Hill, 86; Ward v. Johnson, 13 Mass. 151, 152; Robertson v. Smith, 18 John. 459; Moale v. v. Barker, 4 El. & Bl. 760;] Willis v. De Castro, 4 C. B. N. S. 216; 27 L. J. C. P. 243; [reserving remedies, ante, 399, note (s1).] 6. Replication to a Plea of Release, setting out the Releasing Deed in Hæc Verba, by which it appeared that the Release was to be void in Certain Circumstances, and averring those Circumstances. Hyde v. Watts, 12 M. & W. 254. (m) REPLEVIN BOND. (n) 1. General Issue. (0) 2. Plea to a Declaration on a Replevin Bond, that it was taken by a Person not duly deputed by the Sheriff for the Purpose. (p) That the said supposed bond was taken from the defendants in the name of the sheriff of the county of by one M. G., under pretence that the said M. G. was then the deputy of the said sheriff of the said county, but that at the time of the taking thereof the said sheriff had not deputed or appointed the said M. G. as his deputy, nor had the said M. G. any authority in the sheriff's name to make replevies and deliverance of distresses. 3. Plea that the Suit abated by the Death of the Plaintiff in Replevin. Morris v. Matthews, 2 Q. B. 295. OBS. - RESCINDED CONTRACT. At common law, an agreement (whether reduced to writing or not is immaterial) not under seal may before breach be wholly waived or rescinded by the mutual consent of the parties, even by parol, and without any accord or satisfaction. Goss v. Lord Nugent, 5 B. & Ad. 58; Rippinghall v. Lloyd, 5 B. & Ad. 742; Taylor v. Hilary, 1 Cr., M. & R. 741; Franklin v. Miller, 4 Ad. & E. 599-606; Fitt v. Cassanet, M. & G. 898. See Lewis v. Clifton, 14 C. B. 245; 23 L. J. C. P. 68; [1 Chitty Contr. (11th Am. ed.) 154, 155, and cases cited in note (d); 2 Ib. 1147.] But not after breach. Edwards v. Chapman, 1 M. & W. 231; and see Cooper v. Phillips, 1 Cr., M. & R. 649. Hollins, 11 Gill & J. 11; Ward v. Motter, 2 (m) Neville v. Boyle, 11 M. & W. 26. Replication, that the release was altered. Fazakerly v. Knight, 6 El. & Bl. 795; 26 L. J. Q. B. 30. See form of replications on equitable grounds, De Pothonier v. De Mattos, 27 L. J. Q. B. 260; [El., Bl. & El. 461;] Lyall v. Edwards, 30 L. J. Ex. 193; [6 H. & N. 337;] The Thames Iron Works & Ship Building Co. v. The Royal Mail Steam Packet Co. 31 L. J. C. P. 169; [13 C. B. N. S. 358;] ante, "Equitable Pleas." (n) See form, &c. Faulkner v. Johnson, 11 M. & W. 581. (0) The bail may also plead nul tiel record, if the declaration show a judgment in the replevin suit. If the bond be conditioned to prosecute without delay, and no judgment against the principal is shown, they may plead a prosecution of the replevin suit without delay. See form, &c. Harrison v. Wardle, 5 B. & Ad. 148. As to plea of appearance at the county court, see Rider v. Edwards, 3 M. & G. 202. (p) See 1 Ph. & M. c. 12, s. 3; Griffiths v. Stevens, 1 Chit. R. 196. OBS. Then the agreement to rescind must be executed in accord and satisfaction. Ib.; and Sard v. Rhodes, 1 M. & W. 153; Bayley v. Honan, 3 Bing. N. C. 915; Wray v. Milestone, 5 M. & W. 21; [per cur. Foster v. Dawber, 6 Ex. 839, 851; Adams v. Nichols, 19 Pick. 275; 2 Chitty Contr. (11th Am. ed.) 1148, and note (q).] A mere agreement for an accord, not executed, will hot extinguish a vested right of action. Lynn v. Bruce, 2 H. Bl. 317; Reeves v. Hearne, 1 M. & W. 323; [ante, 288.] A partial failure of consideration does not entitle the other party to rescind a contract in toto; Franklin v. Miller, 4 Ad. & E. 599; Jonassohn v. Young, 4 B. & S. 296; [see Keenan v. Brown, 21 Vť. 86;] but an unqualified refusal by one contractor to perform his part does; aliter, when the refusal is qualified. Lines v. Rees, 1 Jur. 593. As to the right of a defendant to rescind a contract for the delivery of goods, on the ground of the plaintiff refusing to pay for the first part delivery of them, Ivey v. Young, 1 M. & R. 545. See Bartholomew v. Markwick, 33 L. J. C. P. 145; [15 C. B. N. S. 711.] And as to rescinding contract founded on a mistake, Scott v. Littledale, 27 L. J. Q. B. 201; [8 El. & Bl. 815; 2 Chitty Contr. (11th Am. ed.) 1034.] If one party refuses absolutely to perform his contract, the other may rescind the contract. Hochster v. De la Tour, 2 El. & Bl. 678; Avery v. Bowden, 6 El. & Bl. 953; [Barwick v. Buba, 2 C. B. N. S. 563;] Reid v. Hoskins, 6 El. & Bl. 961; Xenos v. Danube Co. 31 L. J. C. P. 84, 284; [11 C. B. N. S. 152;] and notes to Cutter v. Powell, 1 Sm. L. C. 1; [Sargent J. in Clark v. Manchester, 51 N. H. 594, 596; Bell J. in Webb v. Stone, 24 N. H. 288; Allen v. Webb, 24 N. H. 278; Weeks v. Robie, 42 N. H. 316, and cases cited; Danforth v. Dewey, 3 N. H. 79. If the act of one party be such as necessarily to prevent the other party from completing his part of the contract according to the terms of it, the latter may treat the contract as rescinded. Dubois v. Delaware & Hudson Canal Co. 4 Wend. 285; Hall v. Rupley, 10 Barr, 231; Moulton v. Trask, 9 Met. 577; Derby v. Johnson, 21 Vt. 17; Hoagland v. Moore, 2 Blackf. 167; Webster v. Enfield, 5 Gilman, 298; Planché v. Colburn, 8 Bing. 14; Burton v. Pinkerton, L. R. 2 Ex. 340; Reybold v. Voorhees, 30 Penn. St. 116; 2 Chitty Contr. (11th Am. ed.) 828-830, and note (1); Bassett v. Sanborn, 9 Cush. 58, 65. When a contract may be rescinded for fraud, see 1089, and note (m); or because there is a complete difference in substance between the thing bargained for and that obtained under the contract; see Kennedy v. Panama &c. Mail Co. L. R. 2 Q. B. 580; Azemar v. Casella, L. R. 2 C. P. 431, 677; Pooley v. Brown, 11 C. B. N. S. 566; Gardner v. Lane, 12 Allen, 39; 9 Allen, 492; Gurney v. Wormersley, 4 El. & Bl. 133; Benj. Sales (1st Am. ed.), § 600 et seq.; or for breach of warranty, see 1 Chitty Contr. (11th Am. ed.) 648, and note (q1); Day v. Pool, 52 N. Y. 416, 419; Rogers v. Hanson, 35 Iowa, 284, 286, 287; Scranton v. Tilly, 16 Texas, 173; Kuntzman v. Weaver, 20 Penn. St. 422; Matteson v. Holt, 45 Vt. 336; Carpenter v. Minturn, 65 Barb. 293; Benj. Sales (1st_Am. ed.), § 888, and note (a); Dorr v. Fisher, 1 Cush. 271, 274; Foster J. in Morse v. Brackett, 98 Mass. 209; and in Boardman v. Spooner, 13 Allen, 361; or for non-performance of condition precedent, see 2 Chitty Contr. (11th Am. ed.) 1090, and note (p); Frost v. Jackson, 7 Cowen, 24.] In the case of an agreement required to be in writing under the statute of frauds, a parol agreement, even before breach that it shall be abandoned in part, is void. Goss v. Lord Nugent, supra; Earl of Falmouth v. Thomas, 1 Cr. & M. 89; Harvey v. Grabham, 5 Ad. & E. 61. [See Noble v. Ward, 4 H. & C. 149; S. C. L. R. 1 Ex. 117; S. C. 2 Ib. 135; Moore v. Campbell, 10 Ex. 323, 332; Swain v. Seamens, 9 Wallace, 254; Stead v. Dawber, 10 Ad. & E. 57; Dana v. Hancock, 30 Vt. 616; Ogle v. Vane, 7 B. & S. 855; L. R. 2 Q. B. 275; 9 B. & S. 182; L. R. 3 Q. B. 272; Emmet v. Dewhurst, 3 Mac. & G. 587; Browne Stat. Frauds, §§ 179, 411 et seq. The law is settled otherwise in Massachusetts, where it is held that parol evidence may be admitted to prove a subsequent oral agreement, enlarging the time of performance of a simple contract, or varying its terms, or to show a waiver or discharge, although the original contract was required by the statute of frauds to be in writing. Stearns v. Hall, 9 Cush. 31; Cummings v. Arnold, 3 Met. 486. The decisions in Maine and Maryland have a bearing in the same direction. Richardson OBS. v. Cooper, 25 Maine, 450; Blood v. Hardy, 15 Maine, 61; Franklin v. Long, 7 Gill & J. 407; Watkins v. Hodges, 6 Harr. & J. 38.] Where a contract has been rescinded ab initio, that is, under a power to rescind contained in the original contract, that fact, when set up as a defence to an indebitatus count, may be given in evidence under non assumpsit. But such is not the effect of a subsequent agreement to rescind; in such case there is a substitution of one agreement for another, and a special plea in confession and avoidance would be proper. Stevens v. Ufford, 7 C. & P. 97. 1. Plea that before Breach the Contract was rescinded by Mutual Agreement. That after the said contract, and before any breach thereof, it was agreed by and between the plaintiff and defendant that the contract should be, and thereupon it was, rescinded. [See Burgess v. De Lane, 27 L. J. Ex. 154.] 2. Plea that before Breach the Plaintiff absolved, exonerated, and discharged the Defendant. (q) Davis v. Bomford, 30 L. J. Ex. 139; 6 H. & N. 245. RESTRAINT OF TRADE. OBS. Ante, 134-136. Plea that a Covenant not to carry on a Business within Certain Limits was void, as being contrary to Public Policy. Mellan v. May, 11 M. & W. 653. REWARDS. (r) OBS. SALE OF GOODS. See ante, Obs. 234. In an action upon the indebitatus counts for the price of goods sold, the defence that they were of so bad a quality as to be entirely worthless, contrary to an express or implied contract; [see Benj. Sales (1st Am. ed.), § 899, and notes (p) and (9);] or that they are not worth more upon a quantum meruit than a certain sum (paid into court or paid before action), by reason of their not being conformable to a warranty given or sample shown, or equal in quality to what they ought to have been by implication of law, may be set up under never indebted, although a fixed price were agreed upon. Cousins v. Paddon, 2 Cr., M. & R. 547. A plea that the goods consisted of a machine, for which nothing was to be paid unless it worked well, was held bad on special demurrer; Groundsell v. Lamb, 1 M. & W. 352; and so was a plea which stated that a boat, warranted sound by the plaintiff, had turned out unsound, and was only worth a certain sum which had been paid. Dicken v. Neale, 1 M. & W. 556. See other instances, Hayselden v. Staff, 5 Ad. & E. 161; Gardener v. Alexander, 1 Bing. N. S. 671. So, under the general issue, the defendant may prove that the goods delivered (q) Like pleas, King v. Gillett, 7 M. & W. 55; Goldham v. Edwards, 17 C. B. 141; Hobson v. Cowley, 27 L. J. Ex. 205; Xenos v. Danube Co. 31 L. J. C. P. 84; [11 C. B. N. S. 152; Davis v. Bomford, 6 H. & N. 245.] (r) See ante, 233. See, also, Neville v. Kelly, 32 L. J. C. P. 118. OBS. formed part of several parcels ordered under an entire contract for the whole of the goods; that the part delivered were returned in due time, and that no more were delivered before action, for under such circumstances no promise to pay for those delivered can be implied; ante, 279; and the defence that the goods were sold upon a credit unexpired when the action was commenced, may and must be relied upon on the general issue. Never indebted means that there never was any contract of sale on credit; it may be shown therefore under it that payment was made for the goods at the time they were brought and delivered; Bussey v. Barnett, 9 M. & W. 313; but see Littlechild v. Banks, 14 L. J. Q. B. 356; or that they were supplied in part payment of defendant's wages. Wilson v. Storey, 4 Jur. 463. In an action against a man for goods ordered by a third person in his name, the authority of the third person to order the goods, whether such authority arises from implication of law or from other circumstances, may be disputed under never indebted; it follows, therefore, that in an action against a husband for goods ordered by his wife, her adultery, or such other facts as show that she had no authority, express or implied, to bind her husband, may be shown under never indebted. Symes v. Goodfellow, 2 Bing. N. C. 532; Spreadbury v. Chapman, 8 C. & P. 371; Sinclair v. Hervey, 2 Chit. Rep. 642. 1. General Issue. Never indebted, ante, 284; non assumpsit, ante, 284. 2. Plea to a Special Declaration for not accepting; that the Defendant did accept. That he did accept the said goods according to his contract. 3. Plea to a Similar Declaration, that Plaintiff was not ready and willing to deliver the Goods. (8) That the plaintiff was not ready and willing to deliver the said goods according to his contract. 4. Plea that the Plaintiff did not send the Goods within the Time, and was not ready and willing to do so. (t) Attwood v. Emery, 1 C. B. N. S. 111. 5. Plea to a Special Declaration for not paying for the Goods; that the Defendant did pay for them. That he did pay to the plaintiff the price for the said goods according to his contract. (s) This form of traverse involves the plaintiff's ability to perform his contract. See Lawrence v. Knowles, 5 Bing. N. C. 399; De Medina v. Norman, 9 M. & W. 820; Boyd v. Letts, 1 C. B. 222; S. C. 2 D. & L. 847. It would be bad to traverse a tender of the goods, even though the plaintiff should improperly introduce that allegation into his declaration. Jackson v. Alloway, 6 M. & G. 942. The lunacy of the plaintiff may be given in evidence under this plea. Kirtley v. Copeland, 1 Car. & K. 319. Plea to a declaration for wrongfully discharging the defendant from going on with the manufacture of goods ordered from him by the plain tiff, denying such discharge. Pontifex v. Wilkinson, 1 C. B. 76. A plea to a declaration for not accepting a cargo of oil, stating that the casks were not merchantable, was held bad. Gower v. Dedalzen, 3 Bing. N. C. 717. Pleas, &c. in this form of action, held bad for duplicity. Smith . Dixon, 6 Dowl. 47; S. C. 7 Ad. & E. 4. (t) See other forms excusing acceptance; that they were not according to sample. Sieveking v. Dutton, 3 C. B. 331; 15 L. J. C. P. 276; not equal to contract, Jones v. Clarke, 2 H. & N. 725; not in a merchantable condition, Bull v. Robison, 10 Ex. 342; 24 L. J. Ex. 165. |