have the same effect, though containing the names of the parties. To be enforceable as a contract, it must be signed by the party or his agent. Dennison vs. Carnahan, 1 E. D. Smith, 144. See, as to the memorandum of a judicial sale not being within the statute, Hegeman vs. Johnson, 35 Barb., 200.

But a partial delivery takes the case at once out of the statute. Same case. And this, though not made at the time of, but subsequent to, the original agreement. McKnight vs. Dunlop, 1 Seld., 537; Sale vs. Darragh, 2 Hilt., 184; Boutwell vs. O'Keefe, 32 Barb., 434. As to what will be a sufficient delivery to take the case out of the statute, see Dyer vs. Forest, 2 Abb., 282. See also, as to the effect of part performance by the principal, of a contract made in his agent's name, St. John vs. Griffith, 13 How., 59; 2 Abb., 198. To take the case out of the statute, a delivery must be legal and actual; if imperfect in either view, it will not avail. See Lewin vs. Stewart, 17 How., 5; reversing same case, 10 How., 509.

of

pay

The application of a previous advance to the vendor, by way ment of the deposit, in a subsequent bargain between him and the vendee, was held a sufficient payment to take the case out of the statute, in Mattice vs. Allen, 33 Barb., 543. See generally, as to the effect of a payment in this respect, Whitehouse vs. Moore, 13 Abb., 142.

A manufacturing or executory contract, is not a sale of goods within the purview of the section. The true criterion in such a case, is to inquire whether the work or labor required to prepare the subjectmatter for delivery, is to be done for the vendor himself, or for the vendee. In the former case, the contract is really a contract of sale; in the latter, a contract of hiring. Courtright vs. Stewart, 19 Barb., 455; Donovan vs. Wilson, 26 Barb., 138; Robertson vs. Vaughn, 5 Sandf., 1; Mead vs. Case, 33 Barb., 202.

As long as a transaction for extinguishing an antecedent debt by delivery of goods, rests in mere words, it is void under the statute; but it becomes valid, the moment the act of giving credit is performed by the buyer. Brabin vs. Hyde, 30 Barb., 265.

A delivery of goods to be made in exchange for others, will not be considered as payment, or as transferring the title, till actually complete. Chapin vs. Potter, 1 Hilt., 366.

In Amburger vs. Marvin, 4 E. D. Smith, 393, it is held that it is not necessary for a defendant to plead the statute of frauds in terms. The objection lies to the whole cause of action set up by the complaint, and, as such, may be raised on the trial. See also Haight vs. Child, 34 Barb., 186, holding that where facts out of which the question arises are apparent, the objection need not be taken in terms. Lewin vs. Stewart, 10 How., 509, which holds the contrary, is generally reversed, 17 How.,

5; and, although not specially noticed, the reversal necessarily embraces this point.

(h.) STATUTE OF LIMITATIONS.

This defence is, on the contrary, one that, to be available, must be specially pleaded. Shears vs. Shafer, 2 Seld., 268. See also, collaterally, Arthurton vs. Dalley, 20 How., 311.

there

It must also be taken by answer. Code, section 74. See, as to the positive nature of this restriction, Lefferts vs. Hollister, 10 How., 383; Stewart vs. Smith, 14 Abb., 75; Voorhies vs. Voorhies, 24 Barb., 150; Humphrey vs. Persons, 23 Barb., 313, and Swift vs. Drake, M. S., referred to. See also Butler vs. Mason, 16 How., 546; 5 Abb., 40, and Sands vs. St. John, 23 How., 140. Genet vs. Tallmadge, 1 C. R. (N. S.), 346, holding that, where the objection is patent on the face of the complaint, it may be taken by demurrer, is evidently contrary to the section in question. These restrictions, however, only date from the amendment of 1851; before that year, the objection was raisable by demurrer. Fellers vs. Lee, 2 Barb., 488. See, however, Stewart vs. Smith, above cited.

That objection is not one that is favored, and will be waived by suffering a default. Humphrey vs. Persons, supra. See also, as to refusing leave to set it up, after failure upon a demurrer, Osgood vs. Whittlesey, 20 How., 72; 10 Abb., 134; or, upon amendment by leave of the court, Sagory vs. New York and New Haven Railroad Company, 21 How.,455. It is compatible with a traverse of the plaintiff's case on other points, and, if separately taken, cannot be stricken out for inconsistency. 08trom vs. Bixbey, 9 How., 57.

In pleading the objection, it will be sufficient to state it in the words of the statute, without entering into any lengthened detail of the circumstances which render it tenable. See People vs. Arnold, 4 Comst., 508, overruling People vs. Van Rensselaer, 8 Barb., 189, and People vs. Livingston, 8 Barb., 253. See also, Bell vs. Yates, 33 Barb., 627.

It is competent for a foreign corporation to put in a plea of the statnte, in an action on contract. The exception in section 100, as to absence from the state, applies only to natural persons, and not to corporate bodies. Olcott vs. The Tioga Railroad Company, 26 Barb., 147; Dart vs. The Farmers' Bank of Bridgeport, 27 Barb., 337.

An executor, cited to account before the surrogate, may also plead the statute, the same as in an ordinary suit. Martin vs. Gage, 5 Seld., 398. As to the special limitation, with reference to a suit on a claim rejected by an executor or administrator, and the necessity of such objection being express, to entitle him to the protection of the statute, see Barsalou's case, 4 Abb., 135.

The benefit of the statute is, however, strictly defensive. It cannot form the basis for affirmative relief of any description. Lawrence vs. Ball, 4 Kern., 477; Morey vs. Farmers' Loan and Trust Company, 4 Kern., 302.

There is no other rule of law, except the statute, which can be invoked, to limit the period within which a party may assert his right, or to bar him, by reason of delay in such assertion. Bidwell vs. The Astor Mutual Insurance Company, 16 N. Y., 263.

As to the effect of a new promise, in rebuttal of this defence, and the mode of pleading it, see Clark vs. Atkinson, 2 E. D. Smith, 112. As to its being provable under the ordinary issue, without being specially replied, see Esselstyn vs. Wecks, 2 E. D. Smith, 116, not affected, but, on the contrary, sustained on this point, by the general reversal, 2 Kern., 635; 2 Abb., 272.

(.) PLEA OF "PLENE ADMINISTRAVIT."

In actions against an executor or administrator, allegations, analogous to the old plea of plene administravit, are inadmissible; and, if made, the answer will be held bad upon demurrer, and judgment given for the plaintiff, for future assets, "quando acciderint." The plea of plene administravit was not even a good plea under the Revised Statutes. Hyde vs. Conrad, 5 How., 112; 3 C. R., 162; Belden vs. Knowlton, unreported decision of Superior Court. In the latter case, however, allegations of this nature were refused to be stricken out upon motion, though subsequently held bad upon demurrer.

(j) INFANCY.

This defence must be specially pleaded. If omitted to be raised, either by the answer, or on motion, it will be waived. Treadwell vs.

Bruder, 3 E. D. Smith, 596.

(k.) ILLEGALITY.

As to the invalidity of a contract, in violation of the prohibitory statute on the subject of betting and gaming, see Cassard vs. Hinman, 14 How., 84; affirmed, 1 Bosw., 207; Same case, 6 Bosw., 8.

See likewise, as to the illegality of a promissory note, given to induce the exercise of undue influence, Devlin vs. Brady, 32 Barb., 518.

The subsequent repeal of a statute, rendering illegal, a contract not malum in se, will validate that contract, though void at the time it was made. Washburn vs. Franklin, 35 Barb., 599; 13 Abb., 140; reversing same case, 11 Abb., 93.

And, to sustain a defence of this nature, a contract must be actually in violation of some statute or rule of law, or tainted by fraud. Its

being discreditable, or in breach of confidence, will not avail. Moore vs. Remington, 34 Barb., 427.

(2.) USURY.

This is another, and the last that will be adverted to, of that class of defences, to the consideration of which the present section is devoted. It is statutory in its nature, and must be specially pleaded. When established, it virtually abates the plaintiff's cause of action.

The provisions on the subject are contained in title III., chapter IV., part II. of the Revised Statutes (1 R. S., pp. 771-773, and divers amendatory acts, especially chapter 430, of 1837, amending section 5 of that title). It is not necessary to cite these provisions at length, or to do more than remark generally, that, under the section last alluded to, "All bonds, bills, notes, conveyances; all other contracts or securities whatever (except bottomry and respondentia bonds and contracts), and all deposits of goods or other things whatsoever, whereupon or whereby there shall be reserved or taken, or secured, or agreed to be reserved or taken, any greater sum or greater value, for the loan or forbearance of any money, goods, or other things in action, than is above prescribed (i. e., at the rate of seven per cent. per annum), shall be void."

The defence thus created will be now considered. The title in question may also be made the basis of affirmative relief, by suit for the purpose of recovering back the amount usuriously paid, or of avoiding the usurious transaction, and likewise by criminal proceedings; but that view of the question is not pertinent to the subject of the present chapter.

The defence is not one that is favored by the courts, and a defendant setting it up, will be held to strict rules, both in the mode of pleading, and in the substance of the defence itself.

It must accordingly be specially pleaded in all cases, or evidence of it cannot be given. Scott vs. Johnson, 5 Bosw., 213; Smalley vs. Doughty, 6 Bosw., 66. See likewise, as to the impeachment of a transaction, on the part of a plaintiff, Williams vs. Birch, 6 Bosw., 299.

When pleaded, it must be so in clear and precise terms; the facts must be clearly alleged; the terms of the usurious contract, and the quantum of usurious interest or premium distinctly and correctly set up; and the proof must correspond with the allegations. A corrupt agreement for the payment of such usurious rate, must also be specifically charged; for, when the state of facts alleged is in any manner consistent with a lawful purpose, the law will never presume the contrary. General averments of usury, without specific allegations of facts, and specific imputations of illegality, will therefore be wholly inefficient. See Manning vs. Tyler, 21 N. Y., 567; Cutler vs. Wright, 22 N. Y.,

472; Fay vs. Grimstead, 10 Barb., 321; Gould vs. Horner, 12 Barb., 601; 1 C. R. (N. S.), 356; Quick vs. Grant, 10 L. O., 344; Gould vs. Rumsey, 21 How., 97; Bailey vs. Lane, 21 How., 475; 13 Abb., 354; Watson vs. Bailey, 2 Duer, 509; Griggs vs. Howe, 31 Barb., 100; Morse vs. Cloyes, 11 Barb., 100; Gasper vs. Adams, 28 Barb., 441; Morris vs. Slattery, 6 Abb., 74. See, however, as to what will be a sufficient allegation of usury in a transaction, though defective in point of form, Dagal vs. Simmons, 23 N. Y., 491.

In an answer, impeaching a note in the hands of a transferree, it is essential that its invalidity at the time of transfer to him, should be directly averred. Burrall vs. Bowen, 21 How., 378.

When pleaded, it is strictly a defence, requiring no reply. Burrall vs. De Groot, 5 Duer, 379.

Where the defendant has suffered a default, the courts may, in an extreme case, be disposed to restrict him from setting up the defence of usury, as a condition, on allowing that default to be opened. Morris vs. Slattery, 6 Abb., 74; Toole vs. Cook, 16 How., 142.

But, though the defence be not favored, a defendant setting it up will not be deprived of the ordinary rights of suitors, under the Code, in relation to the disregard of variances, and leave to amend. The strict rule which formerly prevailed on this subject, obtains no longer. Catlin vs. Gunter, 1 Kern., 368; 10 How., 315; reversing same case, 1 Duer, 253; 11 L. O., 201; and overruling, in effect, Bates vs. Voorhies, 7 How., 234; Deuel vs. Spence, 1 Abb., 237; Brown vs. Mitchell, 12 How., 408; 2 Abb., 481.

But, in such a case, or where leave is asked to open a default, the court will be disposed to impose strict terms, and, especially in the latter case, to allow the judgment entered, to stand for the amount really due, or as security. See Grant vs. McCaughin, 4 How., 216. Gasper vs. Adams, 24 Barb., 287.

To constitute an usurious transaction, there must be, 1st, a loan, and, 2d, an agreement, and intention to pay illegal interest. And it is essential, to constitute a loan, that the thing borrowed is, at all events, to be returned. Where the principal is bonâ fide put at hazard, the statute will not apply; nor, if the gain to the lender beyond the legal rate, is made dependent upon the will of the borrower, so that he can discharge himself from it, by punctual payment. Pomeroy vs. Ains worth, 22 Barb., 118. See also generally, Woodruff vs. Husson, 32 Barb., 557.

Nor is a loan of goods, to be returned in kind, or of the produce of stock, on an agreement that the stock shall be replaced, a transaction within the statute. Dry Dock Bank vs. American Life Insurance and Trust Company, 3 Comst., 344.