them, has been already fully considered, and the decisions in point cited in book VII., chapter II., section 144, and also section 140, as to the attribution of negligence, to which the reader is accordingly referred. In Boswell vs. Hudson River Railroad Company, 10 Abb., 442, there will be found the form of an answer, setting up a special contract exempting the defendant from liability from accident, and decided to be sufficient by the court.

(h.) ACTIONS ON THE GROUND Of Fraud.

In an action for a fraudulent conspiracy, no laches on the part of the plaintiff, short of the statute of limitations, will constitute a defence. Ilion Bank vs. Carver, 31 Barb., 230.

But, in an action for damages for false representations, inducing the purchase of property, gross laches on the part of the purchaser, in neglecting to inform himself of the real state of the facts, may avail to defeat his remedy. White vs. Seaver, 25 Barb., 235. See also, as te representations inducing a contract, Swift vs. City of Williamsburgh 24 Barb., 427.

See, as to the rule "in pari delicto, potior est conditio defendentis," Sharp vs. Wright, 35 Barb., 236.

(h. 2.) DEFENCE OF FRAUD.

When fraud is set up as a defence to an action on contract, the defendant must aver in his answer, that he has done all in his power to restore the plaintiff to his former condition. If omitted, the defence may be unavailable. Devendorf vs. Beardsley, 23 Barb., 656.

(i.) TROVER, &c.

The subject-matter of action in trover, and of the incident defences, has already been considered as above, in section 143, supra.

A bailee of goods, who claims a lien upon them, must make that claim positively, at the time of demand, or his refusal will be evidence of conversion. Heine vs. Anderson, 2 Duer, 318.

Trover being an action sounding strictly in tort, the defence of recoupment is inadmissible. Walther vs. Wetmore, 1 E. D. Smith, 7. See likewise, Andrews vs. Durant, 18 N. Y., 496. So also, as to that of infancy. Fish vs. Ferris, 5 Duer, 49. Nor can title in a third party be set up, when brought for a wrongful taking of goods out of the plaintiff's possession. King vs. Orser, 4 Duer, 431; Kissam vs. Roberts, 6 Bosw., 154. Where, however, no actual trespass has been committed, it is competent for the defendant to show title in a third person, and that the plaintiff was not in possession. Davis vs. Hoppock, 6 Duer, 254.

In trover, a traverse of the value alleged by the plaintiff, is unnecessary, as he must prove his damages, whether denied or not. Cornoss vs. Mier, 2 E. D. Smith, 314.

In an action of trover, arising out of a trespass, brought for the value of timber cut by the defendant, a parol license may be pleaded, and, if established, will constitute a defence. Pierrepont vs. Barnard, 2 Seld., 279.

As to the necessity of specially pleading leave and license, if set up by way of defence, in an action for an ordinary trespass, see Haight vs. Badgeley, 15 Barb., 499.

A retaking of goods clandestinely abstracted from their lawful owner, by means of due process of law, forms a good defence in his mouth, to an action against him by a subsequent vendee, in respect of such retaking. Conlan vs. Latting, 3 E. D. Smith, 353.

(j.) REPLEVIN.

The Code itself makes one provision as to the defence in this action, in section 166, which provides that, in an action to recover the possession of property, distrained damage feasant, an averment of possession of the real property on which the distress was made, and that the property distrained was, at the time, doing damage therein, shall be good, without setting forth the title.

In this form of action, positive title in a stranger constitutes a defence; and, in the absence of any right shown to exist in the plaintiff, may be pleaded and proved, without connecting the defendant with such title. Rockwell vs. Saunders, 19 Barb., 473.

But, where the plaintiff shows any equitable interest or prima facie right to possession, and the defendant shows no privity between himself and the stranger whose title he sets up, the rule will not be applied. See Johnson vs. Carnly, 6 Seld., 570.

In this form of action, the title of the plaintiff may be generally impeached by the defendant. See Schlussel vs. Willett, 34 Barb., 615; 22 How., 15; 12 Abb., 397; Thayer vs. Willett, 5 Bosw., 344; Pettee vs. Orser, 6 Bosw., 123.

To be available, as a defence in replevin, a lien claimed upon the property sought to be recovered, must be legal and sufficient, or the claim will be unavailable. Moffatt vs. Van Doren, 4 Bosw., 609.

Proceedings in replevin, by creditors at large of an assignor of property, will not enable them to dispute the title of an actual assignee, suing in trover, even though derived under an assignment void upon its face. See Andrews vs. Durant, 18 N. Y., 496.

Denial and justification may, if separately stated, be pleaded in the same answer, in this form of action. Hackley vs. Ogman, 10 How., 44.

2. Defences in Contract.

(k.) BILLS, PROMISSORY NOTES, AND CHECKS.

The plea of usury, one of the principal lines of defence adoptable in proceedings on this class of instruments, has been already considered in the last preceding section.

The subject of instruments of this description has been already very fully treated, and numerous decisions, bearing on the subject-matter of the various defences which may be interposed, in actions founded upon them, cited and commented upon, in book VII., chapter II., section 146, to which the reader is accordingly referred.

A few of those cases, and those especially which bear upon the mode of allegation of such subject-matter, when admissible as a defence, will, however, be here noticed.

An affirmative defence, such as unreasonable delay in the presentation of a check, should be specially pleaded, and cannot properly be introduced under a mere denial. Harbeck vs. Craft, 4 Duer, 122.

A total failure of the consideration for which a note has been given, will form a complete defence, as in the case of notes, given under a contract, afterwards declared to be void. Sherman vs. Barnard, 19 Barb., 291; or of one given on account of purchase-money for a property, to which the vendor afterwards fails to make out any title. Burwell vs. Jackson, 5 Seld., 535. So also as to a neglect to make out title, constituting a defence to a note given on that condition. Culver vs. Burgher, 21 Barb., 324. A note founded on an illegal consideration will also be void. Bell vs. Leggett, 3 Seld., 176. See also Brown vs. Montgomery, 20 N. Y., 287, as to the effect of a fraudulent suppression of information, on the sale of commercial paper, wholly invalidating a note given for its price.

A partial non-performance of the contract, in respect of which a note is given, will not, however, be a defence. Pratt vs. Gulick, 13 Barb., 297. See also Palmer vs. Smedley, 18 How., 321. Or a failure in the speculation, out of which a note has arisen. Lowber vs. Selden, 11 How., 526. Or an erroneous representation as to the nature of property sold, when made in good faith, and no deceit practised. United States Trust Company vs. Harris, 2 Bosw., 75. Nor will a subsequent eviction of the tenant, bar a recovery on a note for rent, given in advance. Brooks vs. Christopher, 5 Duer, 216.

The defence of failure of consideration is personal to the parties actually contracting, and cannot be set up by an indorser. Gillespie vs. Torrance, 4 Bosw., 36. Nor can it be set up by the maker, as

against a bona fide indorser for value, without notice of such failure. Davis vs. McCready, 17 N. Y., 230; Britton vs. Hall, 1 Hilt., 528. Transfer of a due bill does not, however, shut out any defence, existing in the maker at the time it was given. See Sackett vs. Spencer, 29 Barb., 180. See also, as to attempt to sue upon a note, the amount of which has been paid to the holder, after maturity, Burr vs. Smith, 21 Barb., 262.

When a partial failure of consideration, as between the original parties, is pleaded, the details should be given, or the answer may be held insufficient. Castles vs. Woodhouse, 1 C. R., 72.

A joint maker, setting up want of consideration as a defence, must disprove it as to all who join, to displace the contrary presumption. Kinsman vs. Birdsall, 2 E. D. Smith, 395. But such a maker may plead a personal discharge to himself. Mott vs. Burnett, 2 E. D. Smith, 50.

Diversion of a note from the purpose for which it was given, with notice to the plaintiff of such purpose, is, primâ facie, a good defence. Rochester vs. Taylor, 23 Barb., 18.

But the transfer of accommodation paper for a precedent debt, is no answer, in the absence of fraud. De Zeng vs. Fyfe, 1 Bosw., 335; Lathrop vs. Morris, 5 Sandf., 7. See, however, Holbrook vs. Mix, 1 E. D. Smith, 154, as to the effect of circumstances, sufficient to put the transferree on inquiry.

As to the defence of cancellation of a promissory note, by handing it back to the maker, in satisfaction of a debt due to him, see Edwards vs. Campbell, 23 Barb., 423.

The mere fact that a note has been levied upon in the hands of the plaintiff, under an attachment, is no defence, though payment of it to the sheriff, after such levy, might avail. Russel vs. Ruckman, 3 E. D. Smith, 419.

As to the qualification of his signature, by the drawer or indorser of commercial paper, being available as a defence, when the signer is sought to be charged individually, see Babcock vs. Beman, 1 Kern., 200; affirming same case, 1 E. D. Smith, 593; and Hicks vs. Ilinde, 9 Barb., 528; 6 How., 1.

See, likewise, as to the non-performance of a condition on which a note was indorsed, being a complete defence, in the mouth of the indorser, as against a holder with notice, Prentiss vs. Graves, 33 Barb., 621.

A denial of the receipt of notice of protest, in an answer, will, although such answer be verified, be wholly insufficient to exclude the certificate of a notary as evidence, under section 8, chapter 271, of 1833. The statute expressly requires a separate affidavit. Harbeck vs.

Craft, 4 Duer, 122; Arnold vs. Rock River Valley Union Railroad Company, 5 Duer, 207; Burrall vs. De Groot, 5 Duer, 379; Young vs. Catlett, 6 Duer, 437. As to the form of such an affidavit, see Barker vs. Cassidy, 16 Barb., 177.

But such a denial in the answer, will not be stricken out as sham, though contradicted. See Bailey vs. Lane, 21 How., 475; 13 Abb., 354.

(7.) BONDS.

As to the defences that will or will not be available, to a surety on an administration bond, when sued on by a creditor of the estate, see People vs. Laws, 3 Abb., 450; affirmed, 4 Abb., 292.

The assignee of a bond, takes it subject to all equities existent against his assignor, and any such may be pleaded, and shown by way of defence. Western Bank vs. Sherwood, 29 Barb., 383.

The different questions as to the liability of the obligees on a statutory undertaking, have been already fully considered, and the cases in point cited, in book VII., chapter II., section 147, supra, to which the reader is accordingly referred.

The same observation may be made, with respect to the various defences which may be interposed to an action on a policy of insurance, as fully treated of in the same section.

(m.) JUDGMENTS.

As a general rule, the validity of a judgment cannot be impeached in a collateral proceeding.

Fraud in the obtaining of it may, however, be set up as a defence in an action of this nature, and, if proved, will defeat it. See Dobson vs. Pearce, 2 Kern., 156.

(n.) RENT.

Eviction of the tenant from any part of the premises, by the act of the landlord, suspends the liability for rent, until possession is restored. And total eviction, by the lawful act of a third party, will have the same effect. If partial only, an apportionment of rent should be made. Hegeman vs. McArthur, 1 E. D. Smith, 147. See also Christopher vs. Austin, 1 Kern., 216. But this defence may be waived, by a voluntary going into possession, and payment of rent for a portion of premises demised. Hurlburt vs. Post, 1 Bosw., 28.

See, as to what will or will not amount to a constructive eviction, sufficient to work this effect, Dyett vs. Pendleton, 8 Cow., 727; Cohen vs. Dupont, 1 Sandf., 260; Peck vs. Hiler, 14 How., 155; Academy of Music vs. Hackett, 2 Hilt., 217. Where the eviction is temporary,