The following rules also relate specially to defences:

Order xxi. r. 1. "In actions for a debt or liquidated demand in money comprised in O. iii. r. 6, a mere denial of the debt shall be inadmissible."

These liquidated demands (see O. iii. r. 6), arise "(A.) upon a contract, express or implied (as, for instance, on a bill of exchange, promissory note, or cheque, or other simple contract debt); or (B.), on a bond or contract under seal for payment of a liquidated amount of money; or (C.), on a statute, where the sum sought to be recovered is a fixed sum of money, or, in the nature of a debt, other than a penalty; or (D.), on a guaranty, whether under seal or not, where the claim against the principal is in respect of a debt or liquidated demand only; or (E.), on a trust."

It will be seen that O. xxi. r. 1, is to the same effect as R. Pl. T. T. 1853, r. 11; which was annulled by Rules, 1883, preamble, and App. O. R. 2. "In actions upon bills of exchange, promissory notes, or cheques, a defence in denial must deny some matter of fact; e.g., the drawing, making, endorsing, accepting, presenting, or notice of dishonour of the bill or note."

This rule is to the same effect as R. Pl. T. T. 1853, r. 7, vide supra.

R. 3. "In actions comprised in O. iii. r. 6, classes (A.) and (B.)" (vide supra), a defence in denial must deny such matters of fact, from which the liability of the defendant is alleged to arise, as are disputed; e.g., in actions for goods bargained and sold, or sold and delivered, the defence must deny the order or contract, the delivery, or the amount claimed; in an action for money had and received, it must deny the receipt of the money, or the existence of those facts, which are alleged to make such receipts by the defendant a receipt to the use of the plaintiff."

This rule is to the same effect as R. Pl. T. T. 1853, r. 6, vide supra. R. 4. "No denial or defence shall be necessary as to damages claimed or their amount; but they shall be deemed to be put in issue in all cases, unless expressly admitted." See Wood v. Durham, Earl of, ante, p. 302. R. 5. If either party wishes to deny the right of any other party to claim as executor, or as trustee, whether in bankruptcy or otherwise, or in any representative or other alleged capacity, or the alleged constitution of any partnership firm, he shall deny the same specifically." This rule is founded on R. Pl. T. T. 1853, r. 5.

The rules relating to Set-off and Counterclaim will be found post, p. 671.

The Rules, 1883, require a defence, that the contract contained a material provision or condition, not mentioned in the statement of claim, or was in the nature of an escrow, e. g., dependent on the approval of a third person before it operated, should be specially pleaded.

A defence denying the contract raises any objection that can be taken under the Stamp Acts. Vide ante, p. 219. But O. xix. rr. 15, 20 (ante, pp. 301, 302), require the defence of the Stat. of Frauds to be pleaded specially. Clarke v. Callow, 46 L. J., Q. B. 53, C. A.

Where allegations in the statement of claim have been traversed in the statement of defence in a more general manner than is allowed by O. xix. rr. 17, 19, ante, p. 301, the judges in the Chancery Division have, in many instances, treated the case as though there were no defence pleaded, and refused the defendants leave to amend. Thorp v. Holdsworth, 3 Ch. D. 637; Byrd v. Nunn, 5 Ch. D. 781; 7 Ch. D. 284, C. A.; Tildesley v. Harper, Id. 403; Harris v. Gamble, Id. 877. See also Crowe v. Barnicot, 6 Ch. D. 753. It must, however, be observed that the practice which the above cases threatened to introduce would, in fact, amount to a return to the worst abuses of the system of special pleading, which was abolished

by the C. L. P. Act, 1852. The refusal of Fry, J., in Tildesley v. Harper, ante, p. 629, to allow an amendment, was, however, reversed with costs by the C. A., 10 Ch. D. 393, vide ante, p. 289.

If the defence be that the contract was with A., and not with the plaintiff, the fact of payment by the defendant to A. is not impertinent, as evidence, to the issue; for it shows that the defence is a bona fide one, and not a pretext to avoid payment of the debt. Gerish v. Chartier, 1 C. B. 13.

If the defendant be entitled to a verdict on the ground that no contract exists, he must have a verdict against him on inconsistent defences which assume the existence of one; as payment, accord and satisfaction, &c. Gregson v. Ruck, 4 Q. B. 737.

The following defences to actions on simple contract are arranged in alphabetical order.

Accord and Satisfaction.

Accord and satisfaction after breach must be specially pleaded, and the evidence required in support of it depends on the allegations in the defence, and the reply to it.

In order to be a good discharge of the cause of action, an accord must be executed, that is, performed by the defendant and accepted by the plaintiff, before it can be pleaded; but the plaintiff may accept a valid executory agreement in satisfaction; Evans v. Powis, 1 Exch. 601; Hall v. Flockton, 14 Q. B. 380; 16 Q. B. 1039; 20 L. J., Q. B. 208, Ex. Ch. ; and it will be a question for the jury whether the agreement, and not the performance of it, was accepted in lieu and satisfaction. S. C. The defendant pleaded the pendency of certain disputes, and an agreement respecting them between the plaintiff and defendant, entered into in satisfaction, &c.; the plaintiff denied the agreement: held, that the pendency of the disputes was admitted on the record. Hey v. Moorhouse, 6 N. C. 52. Where a cheque sent in full satisfaction of a claim is retained on account only, this is not conclusive evidence of accord and satisfaction, it is a question of fact on what terms the cheque was kept. Day v. McLea, 22 Q. B. D. 610, C. A. It has been held that acceptance of a negotiable instrument by A. before he knew that it was offered to him, may be presumed, when it is for his benefit. London and County Banking Co. v. London and R. Plate Bank, 21 Q. B. D. 535, C. A. Accord and satisfaction made by a stranger on behalf of the defendant, and adopted by the plaintiff, will be a defence. Jones v. Broadhurst, 9 C. B. 193; Randall v. Moon, 12 C. B. 261; 21 L. J., C. P. 226.

If one of several joint creditors accept a satisfaction from the debtor, this is a good defence to the action, without proof of any authority from the co-creditors to accept the satisfaction. Wallace v. Kelsall, 7 M. & W. 264; Smith v. Lovell, 10 C. B. 6; 20 L. J., C. P. 37. So, if satisfaction be accepted after breach, it is a good defence. Blake's case, 6 Rep. 43 b; Bullen & Leake on Pleading, 3rd ed., p. 479. The acceptance in satisfaction, as well as the agreement to accept, or the accord, must be shown. Bayley v. Homan, 3 N. Č. 920; Hardman v. Bellhouse, 9 M. & W. 596. It is not sufficient that the defendant was always ready and willing to carry out his part of the agreement. Collingbourne v. Mantell, 5 M. & W. 289; Wray v. Milestone, 5 M. & W. 21; Allies v. Probyn, 2 C. M. & R. 408.

Where a sum of money has been paid to the plaintiff in satisfaction of unliquidated damages, and a discharge, not under seal, in full signed, the question for the jury is whether the plaintiff's mind went with the

terms of the paper he signed, and was he aware of its effect? If not, the discharge would not bind him. Rideal v. Gt. W. Ry. Co., 1 F. & F. 706; cor. Erle, C. J., cited by Mellish, L. J., in Lee v. Lancashire & Yorkshire Ry. Co., L. R., 6 Ch. 527, 537, where the cases are collected.

An acceptance of a less sum in satisfaction of a debt of a larger liquidated amount is, by itself, no good accord; Cumber v. Wane, 1 Str. 426; Beer v. Foakes, 9 Ap. Ca. 605, D. P.; but if there be some additional benefit or legal possibility of benefit to the creditor thrown in, it may be a discharge. See notes to Cumber v. Wane, in 1 Smith's L. C. Thus, the acceptance of a negotiable security for a less amount, e. g., a cheque payable on demand, will be a good accord and satisfaction. Goddard v.

O'Brien, 9 Q. B. D. 37; Bidder v. Bridges, 37 Ch. D. 406, C. A. And on this ground, compositions with creditors, accepted by them or by several of them under an agreement, are pleadable by way of accord; for in cases of doubtful solvency, the agreement of a creditor to give up a part in consideration that others will do so, is valid as against him, and will bind, although all the creditors have not consented. Norman v. Thompson, 4 Exch. 755. But if the agreement is signed only as an escrow, and on the understanding that certain others are to sign it, it is no accord unless the others also agree. Boyd v. Hind, 1 H. & N. 938; 26 L. J., Ex. 164, Ex. Ch., where Norman v. Thompson, supra, is corrected and explained. Where the demand is not liquidated, as where it is claimed on a quantum meruit, acceptance of a less sum in satisfaction is an answer. Cooper v. Parker, 15 C. B. 822; 24 L. J., C. P. 68.

An oral agreement to accept something as a satisfaction, followed by performance and acceptance, is a good defence by way of accord and satisfaction, notwithstanding that the substituted agreement is not in writing, and could not, therefore, have been enforced by reason of the Stat. of Frauds, s. 4. Lavery v. Turley, 6 H. & N. 239; 30 L. J., Ex. 49. But the mere acceptance of an invalid agreement in satisfaction would not be a defence. Case v. Barber, T. Raym. 450; Noble v. Ward, L. R., 2 Ex. 135, Ex. Ch., ante, p. 29.

As to a composition entered into by debtor with his creditors, under the Bankruptcy Acts, 1883, 1890, vide post, Part III., sub tit. Action against debtor who has made a composition with his creditors.

An agreement to refer to arbitration is not an accord and satisfaction, nor will it oust the jurisdiction of the court, except where the reference is made by the contract itself a condition precedent to the right of action. Scott v. Avery, 5 H. L. C. 811; 6 H. & N. 239; 25 L. J., Ex. 308; Elliott v. R. Exch. Assur. Co., L. R., 2 Ex. 237; Edwards v. Aberayron, &c. Insur. Soc., 1 Q. B. D. 563, Ex. Ch.; Collins v. Locke, 4 Ap. Ca. 674, P. C.; and Dawson v. Fitzgerald, and Babbage v. Coulburn, cited ante, p. 337.

Alteration.

This defence was formerly raised under a denial of the contract, where the instrument was declared on in its altered form; Waugh v. Bussell, 5 Taunt. 707; Hirschman v. Budd, L. R., 8 Ex. 171; but where it was declared on in its unaltered form, or the altered part did not appear in the declaration, it was necessary specially to plead the alteration. Hemming v. Trenery, 9 Ad. & E. 926. In either case, the defence must now be specially pleaded. Rules, 1883, O. xix. r. 15, ante, p. 301.

The leading case, Pigot's case, infra, on this defence, was decided on a deed, and so also were some other of the cases cited below, for the law is

the same in the case of a deed and of a simple contract; Davidson v. Cooper, infra; and both kinds of contracts are therefore here considered together.

In Pigot's case, 11 Rep. 26 b, it was held (1) that an immaterial alteration by a stranger does not avoid a deed; but (2) if made by a party interested, the alteration will avoid it as against him, whether material or not; and (3) a material alteration by a stranger avoids it. Thus, a guarantee was held to be avoided by alteration while in the hands of the plaintiff by attaching seals, so as apparently to make it a deed, without the defendant's knowledge or assent, although the plaintiff sued on it as a simple contract only; Davidson v. Cooper, 13 M. & W. 343, Ex. Ch. ; and it will make no difference that the rights of the parties actually in dispute are not thereby affected. Mollett v. Wackerbarth, 5 C. B. 181. But an alteration, even though made by the plaintiff, which has no effect on the liability of either party, as stated in the contract, will not vitiate the instrument; Aldous v. Cornwell, L. R., 3 Q. B. 573, dissenting from the second resolution in Pigot's case, supra; unless it be proved that the part altered is material for the purposes for which the instrument was created, in which case the instrument will be avoided. Suffell v. Bank of England, 9 Q. B. D. 555, C. A., cited ante, p. 385. Obligee sued obligor on a bond conditioned for performance of covenants in a deed of sale to the defendant, of certain trees which defendant was to cut down before August, 1684. Plaintiff afterwards altered the deed in his possession by erasing 1684, and writing 1685: held, no answer, for the erasure was in a place not material, and to the advantage of the defendant. Darcy v. Sharpe, 1 Leon. 282. In Adsetts v. Hives, 33 Beav. 52, it was held that a mortgage deed was not made void by the fact that the date of the day of payment in the proviso for redemption, and the names of the tenants in the parcels, had been filled in by the mortgagee after the execution of the deed. See also Andrews v. Lawrence, 19 C. B., N. S. 768, Ex. Ch. It has also been denied that a material alteration by a stranger will avoid an instrument. See 2 Sugd. Powers, 193, citing Henfree v. Bromley, 6 East, 310; Alderson, B., in Hutchins v. Scott, 2 M. & W. 814; and Ld. Herschell in Lowe v. Fox, 12 Ap. Ca. 217, D. P. This would probably depend on whether or no the plaintiff was the person responsible for the safe custody of the instrument. If he were so, then the alteration by a stranger would vitiate the instrument, though it was made without the knowledge of the plaintiff. Croockewit v. Fletcher, 1 H. & N. 893; 26 L. J., Ex. 153. See also Bank of Hindostan v. Smith, 36 L. J., C. P. 241. If, however, the alteration were made by a stranger at a time when the plaintiff was not responsible for its safe custody, it has never been held that it could be relied on as a defence.

As to the degree of diligence to be exercised by the person having the instrument in his custody there may be some doubt. It would seem from Shep. Touch. 69, Argoll v. Cheney, Palm. 402, and Bolton v. Carlisle, Bp. of, 2 H. Bl. 259, that he is not absolutely in the position of an insurer, and may show that the alterations arose from accident; but in Croockewit v. Fletcher, supra, Martin, B., makes use of language almost strong enough to make him so. The cancellation of the acceptance on a bill of exchange can be shown to have been done by mistake. Raper v. Birkbeck, 15 East, 17; Wilkinson v. Johnson, 3 B. & C. 428; Novelli v. Rossi, 2 B. & Ad. 757. See further as to the effect of alteration, notes to Master v. Miller, 1 Smith's L. Cases. The alleged alterations cannot be proved by the declarations of a deceased attesting witness. Stobart v. Dryden, 1 M. & W. 615. Where a deed appears to have erasures and interlineations, the presumption is that they were made before execution.

Doe d. Tatum v. Catomore, 16 Q. B. 745; 20 L. J., Q. B. 364. The rule is different in wills, vide ante, p. 143.

If both parties agree to an alteration, then, unless it be made simply for the purpose of correcting an error, the old contract is rescinded, and a new one substituted. The new agreement will in general require a fresh stamp, and if it is one that cannot be stamped after its execution, it cannot be used in evidence. Vide Stamps, ante, pp. 242, 264.

See cases on the effect of alteration as to bills and notes, pp. 385, 386; as to bought and sold notes, pp. 515, 516. A material alteration does not avoid the instrument altogether, and where the plaintiff's claim arises on an instrument which the defendant has altered, the plaintiff must nevertheless sue on the instrument. Pattinson v. Luckley, L. R., 10 Ex. 330.

Bankruptcy.

See post, Part III., sub tit. Actions by and against Bankrupts.

Counterclaim.

See Set-off and Counterclaim, post, pp. 671 et seq.

Coverture.

See post, Part III., sub tit. Actions by and against married women.

Fraud.

The proof of fraud in the party seeking to enforce a contract is a good defence; but it must be specially pleaded. Rules, 1883, O. xix. rr. 6, 15, ante, p. 301. And the allegation of fraud must be specific. Wallingford v. Mutual Society, 5 Ap. Ca. 685, 697, per Ld. Selborne, C. As the law is the same whether the contract is under seal or not, the cases in reference to these two kinds of contract are for convenience here collected together. The fraud must be some concealment or deception, practised by the plaintiff with respect to the very transaction in question; the illegality of the transaction, by reason of usury or other causes, is not sufficient. Green v. Gosden, 3 M. & Gr. 446. Where a fraudulent representation constitutes the alleged fraud, it must be on a matter which, in a case of simple contract, was substantially the consideration for the agreement. Per Erle, J., in Mallalieu v. Hodgson, 16 Q. B. 712; 20 L. J., Q. B. 339; Panama, &c. Mail Co. v. Kennedy, L. R., 2 Q. B. 580. But a false statement to the defendant of the state of accounts between the plaintiff and his debtor, will prove the allegation of fraud, in an action against the defendant as surety for the debtor. Stone v. Compton, 5 N. C. 142; but see Mason v. Ditchbourne, 1 M. & Rob. 460; 2 C. M. & R. 720, n.; D'Aranda v. Houston, 6 C. & P. 511; and Way v. Hearn, 13 C. B., N. S. 292; 32 L. J., C. P. 34; see further, ante, p. 465. Where a surety, being sued on his bond, pleads that it was procured by the fraud and collusion of the plaintiff and the principal, it is not enough to show fraud by the principal, unless the plaintiff was a party to it. Spencer v. Handley, 4 M. & Gr. 414. Where the owner of a house sued the defendant for not taking the house according to agreement, it was held (Ld. Abinger, C. B., dissentiente), that the plea of fraud was not supported by proof that the