1840. KEMBLE v. MILLS. MAULE J. I am of opinion that the plaintiff ought to have judgment. With respect to the third plea, which sets up for a defence the not procuring a licence, it does not appear from the declaration what that licence was, and therefore it does not appear on the face of the declaration that this was a condition precedent. A condition precedent is, however, set up by the plea. I think it competent to a defendant to state in his plea or to shew in evidence, that an act stipulated to be done was a condition precedent. Suppose the case of an agreement to procure a licence for a voyage, and it appeared in the plea, or was shewn in evidence, that the ship could not sail until a licence had been procured, the licence would then be a condition precedent. I think, however, that the proper mode of raising the objection would be, not by pleading, as is done here, but by giving the fact in evidence under non assumpsit. The agreement, when produced, would appear to be a conditional agreement, and not the absolute agreement declared upon. This third plea appears to me to be a roundabout mode of pleading non assumpsit. The plea, however, is not demurred to on that ground. The plea contains two allegations: first, that the licence was an essential preliminary to the success of the trade: secondly, that until the licence was procured the business could not be safely engaged in or undertaken by the defendant. This does not shew that the defendant might not be called upon to pay the 5000l. The words "could not safely carry on the business," used in the plea, are loose and popular, and almost rhetorical expressions. The acts are not shewn by this plea to be such as are precedent, or even concurrent. The fourth plea alleges that the plaintiff did not place to the credit of the said concern, the said sum of 2000, or any sum or sums whatever; but I think the payment of the 2000l. was not a condition precedent to the pay ment of the 5000l.; nor does it appear to me that these were even concurrent acts: but, if concurrent, I think the allegation of readiness and willingness on the part of the plaintiff is sufficient. But the payment of the 2000l. could not be intended to be concurrent; for that sum was to be deducted from the profits of the plaintiff's share of the trade, and the circumstance of the amount being left open shews that it could not have been intended by the parties that the payment should be a condition precedent. It was clearly contemplated that either a part or the whole of the 2000l. might be left unpaid. With respect to the objection raised on demurrer to the second count, it does not appear that the defendant had any account with the bankers on whom the cheque was drawn. When it is shewn that the drawee had no assets in the hands of the drawer, that is generally sufficient; Walwyn v. St. Quintin. (a) Where there is any thing to take the case out of the general rule, that should come from the other side. (a) 1 B. & P. 652.; overruling the opinion of Eyre C. J. at Nisi Prius, that a drawee who had deposited deeds in the hands of the drawer, for the Judgment for the plaintiff. purpose of raising money, was 1840. KEMBLE v. MILLS. 1840. Nov. 12. Under a plea of nunquam indebitatus in FRICKER V. THOMLINSON. DEBT, for goods bargained and sold. Pleas, first, nunquam indebitatus; secondly, paydebt for goods ment; thirdly, that Robert Morgan was factor for the plaintiff, and by his authority sold the goods as his own, and that Morgan was indebted to the defendant in a larger sum. (a) bargained and sold, it is open to the defendant to take the ob jection that the contract The replication joined issue upon the first plea, took issue upon the second plea, and, as to the third plea, is void by the took issue upon the allegation that the goods had been sold by Morgan as his own, by the authority of the plaintiff. seventeenth section of the statute of frauds. But, semble, that the objection is answered by shewing an acceptance and actual receipt of part of the goods after action brought. At the trial before the undersheriff of Middlesex, the second and third pleas were negatived or abandoned. Upon the first issue the case was, that the plaintiff had sold to the defendant cheeses to the amount of 127. 19s. 7d., none of which had been delivered before action brought. After the commencement of the action, the defendant had sent for and taken away four of the cheeses. It was contended, by James for the defendant, that the bargain was void under the seventeenth section of the statute of frauds, no written contract between the parties having been shewn. The undersheriff directed the jury to find a verdict for the plaintiff, debt 127. 19s. 7d., damages 1s., reserving leave to the defendant to move to enter a nonsuit. (a) See George v. Claggett, 2 Esp. N. P. C. 557., 7 T. R. 359.; Rabone v. Williams, 7 T. R. 360. n.; Scott v. Surman, Willes, 400.; Kuckein v. Wil son, 4 B. & Ald. 443.; Baring v. Corrie, 2 B. & Ald. 137.; Morris v. Cleasby, 4 M. & Selw. 566.; Jarvis v. Chapple, 2 Chitt. Rep. 387. Talfourd Serjt., in Trinity term last, obtained a rule nisi to enter a nonsuit on an affidavit verifying the undersheriff's notes, but in which notes the fact of the delivery of the cheeses was omitted. Gaselee Serjt. now shewed cause, and produced an affidavit supplying the fact omitted in the undersheriff's notes. The defence under the statute of frauds should have been specially pleaded. It was so ruled in this court, in the case of Barnett v. Glossop (a); where, in assumpsit for the price of a copyright bargained and sold, it was held that a defence founded upon 8 Ann. c. 19. s. 1., which requires the transfer of a copyright to be in writing, signed in the presence of two or more credible witnesses, must be specially pleaded.. In Elliott v. Thomas (b) it appears, indeed, to have been agreed that the defence that there is no sufficient contract to satisfy the statute of frauds may be set up under the general issue. The affidavit shewing that an acceptance of the goods had been proved at the trial is admissible: Lilley v. Johnson. (c) [Maule J. The case in the Exchequer decided that the statute of frauds only altered the evidence of the contract, and did not, like the statute of Anne, make the contract itself void; and, if that be so, a memorandum of the contract made after action brought would be sufficient: and why, then, should not an acceptance of goods after action brought be admissible in evidence. Tindal C.J. The statute says that no action shall be brought. (d) All that we (a) 1 New Cases, 633. (b) 3 Mees. & W. 170. ; and see Johnson v. Dodgson, 2 Mees. &W.653. (c) 5 Dowl. P. C. 606. (d) The words of the seventeenth section are, "no contract for the sale of any goods, wares, and merchandizes for the price of 10%. and upwards, shall be good, except the buyer shall 1840. FRICKER บ. THOMLINSON. said in Barnett v. Glossop was, that the formalities required by the statute not having been complied with, the case came within the third rule of H. T. 4 W. 4.] Talfourd Serjt., in support of the rule. It may be admitted that, if the affidavit can be read, the plaintiff is entitled to a new trial, but to no more, as the objection would be clearly available under the general issue. In Buttemere v. Hayes (a), the court of Exchequer, after taking time to consider the point, decided that, in an action upon an agreement relating to an interest in land within 29 Car. 2. c. 3. s. 4., the defendant is entitled, under non assumpsit, to avail himself of the objection that there was no memorandum or note in writing of the contract; and upon the authority of that decision, the court of Queen's Bench, on the same day, held in Eastwood v. Kenyon (b) that a defence under the seventeenth section need not be specially pleaded. [Tindal C.J. Suppose a promise in writing to be made after action brought. Maule J. That is not exactly the same thing, because there would be no cause of action at the time the action was commenced. Tindal C. J. I would rather not determine that point until we have heard it argued. The defendant has no opportunity of answering the affidavit, and therefore the utmost effect that could be given to it would be to direct a new trial. It will be better to inquire as to the correctness of the facts stated in the affidavit.] It was ultimately agreed that the rule should be discharged, the plaintiff consenting that the verdict should be reduced to 1s. thereunto lawfully authorised.” Rule discharged accordingly. (a) 5 Mees. & W. 456. (b) Ibid. 462 n.; since reported, 11 Ad. & E. 438.; 3 Perry & D. 276. |