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Statement of Defence. 1. As to the 3rd paragraph of the statement of claim, the Against

husband defendants, while admitting the purchase, acceptance, receipt and wife and price of the goods therein mentioned as matters of fact, to charge

wife's sepadeny that the plaintiff sold or delivered the said goods to the

rate estate. defendant Mrs. Annie T. on the faith of her separate property, or that she bought or accepted them on the credit of or with the intent to charge her said separate property. On the contrary, the defendants say that the defendant Mrs. Annie T. bought and accepted the said goods solely as the agent and on the credit of the defendant P. T.

2. Referring further to the said 3rd paragraph, the defendants also say that the said separate property of the defendant Mrs. Annie T. consists of rents arising from real estate in which she possesses a life interest. By the terms of the instrument under which she takes such interest, Mrs. Annie T. is during coverture entitled to receive the rents, issues, and profits of the said real estate at certain fixed times in each year, and by way of income only, and is disabled from disposing of any portion of the said rents and income by way of anticipation.

3. Referring to the 4th paragraph of the statement of claim, the defendants deny that any balance is owing to the plaintiff from the said defendant Mrs. Annie T. as therein alleged, or at all.

4. Further referring to the said 4th paragraph, the defendants deny that the said defendant Mrs. Annie T. had or still has in her possession any separate property available for the payment of the said balance as therein alleged.

Claim against a Husband upon a Promissory Note given by his

Wife before Marriage, and Defence of Married Woman's
Property Act, 1874.

1. Previous to the 26th July, 1873, the plaintiff, who is a Against a farmer in N., sold a quantity of lambs to the defendant J. F. husband

and wife and the defendant Sarah, who was then unmarried, or to one of on a prothem.

missory

note signed 2. At that time the name of the defendant Sarah was by the wife Sarah D.

before

marriage. 3. On the 26th July, 1873, the defendant J. F. and the

A A

Against

defendant Sarah gave the plaintiff, in payment of or on account husband

of the price of the said lambs, a promissory note of which the foland wife on a pro

lowing is a copy : missory

“We hereby promise to pay to George Lowes or order, on denote signed by the wife mand, two hundred and fifty pounds sterling, with legal interest before at the rate of five

per
cent.

per annum.
marriage.
“Dated this 26th day of July, 1873.

“J. F.

“S. D.” 4. On the 6th August, 1874, the defendant Sarah married the defendant J. J.

5. The defendants have not paid the said promissory note nor the price of the said lambs, and at the date of the issuing of the said writ herein there was due and owing on the said promissory note for principal and interest the sum of £259 128. 2d.

6. The plaintiff claims the said sum of £259 128. 2d., and interest on the principal sum of £250 from the date of the said writ until payment.

Statement of Defence of the Husband J. J.

Defence
of the
Married
Women's
Property
Act, 1874.

1. The said defendant J. J. says that he and the said Sarah were married after the passing and coming into force of “ The Married Woman's Property Act 1870 Amendment Act, 1874,"

2. According to the true intent and meaning of the said Act the defendant J. J. is not liable to pay the debts claimed in this action, inasmuch as the assets of the said Sarah within the true intent and meaning of the said statute at the time of the said marriage, and in respect of and to the extent of which he was or is liable to pay debts contracted by or damages recoverable from the said Sarah before her said marriage, amounted to a small sum of money only, and the said defendant J. J. after his marriage with the said Sarah his wife, and before action, paid the debts of his said wife due at the time of the marriage to an extent exceeding the said amount of the said assets.

3. At the commencement of this suit the said defendant J. J. had not nor has he ever had assets within the true intent and meaning of the said statute, in respect of which he was liable to pay the said debts in the said statement of claim mentioned, or

any part thereof, and for the reasons aforesaid he is not liable Against to satisfy the plaintiff's claim, or any part thereof.

husband and wife on a pro

missory Action against Husband and Wife for a Libel published by the

note. Wife. 1. The plaintiff is The defendant J. M. is and Against

husband the defendant Mary is his wife.

and wife 2. On the 1st of May, 1875, the defendant Mary falsely and for libel

published maliciously wrote and published of and concerning the plaintiff by the the words following, that is to say [here follows the alleged libel- wife. lous matter), meaning thereby [insert the defamatory inference).

The plaintiff claims against the defendants £500 damages.

Illegality (a), (See forms of Defence on the ground of Illegality pp. 182, 279.)

can be

(a) No action can be brought on a promise to do an illegal act or an No action act with an illegal object; nor can an action be brought on a promise made for an illegal consideration, or on a promise made for a considera- brought tion consisting of several parts, any one of which is illegal. (Higgins v.

on a proPitt, 4 Ex. 312; Hill v. Fox, 4 H. & N. 359.). But where the considera- mise to do tion is legal, and several promises are founded on it, some of which are

an illegal legal and others illegal, the legal ones can be enforced. The test for

act, or determining whether a person is precluded from recovering on account where the of illegality, is by considering whether the plaintiff can make out his case

consideraotherwise than through the medium of the illegal transaction to which he tion is was himself a party. (Taylor v. Chester, L. R. 4 Q. B. 309, 314.). A plain; illegal. tiff will not be able to recover either for work done or materials provided where the whole forms one entire subject matter made in violation of an Act of Parliament. (Bensley v. Bignold, 5 B. & A. 335.) Thus a printer will not be able to recover from the publisher his charges for work and paper, &c., in the printing of a libellous or blasphemous book. (Poplett v. Stockdale, Ry. & M. 337; Clay v. Yates, 25 L. J. Ex. 237). An undertaking by a railway company to indemnify the promoters of another railway in case of their failing to obtain a bill is illegal, as there is no authority to expend any of its funds in such a manner. (Macgregor v. Deal and Docer Railway Co., 22 L. J.Q. B. 69, Ex. Ch.) But an agreement with a landowner for a payment in consideration of his withdrawing opposition to a bill for extension of powers is not illegal. (Taylor v. Chichester and Midhurst Railway Co., L. R. 4 H. L. 628). A London broker cannot maintain an action for commission for buying and selling stock, &c., unless duly licensed by the mayor and aldermen of London under 6 Ann. c. 16 (Cope v. Rowlands, 2 M. & W. 149); nor for sale of shares in a company, British or foreign (Smith v. Lindo, 27 L. J. C. P. 335), but he may recover money paid by him to a seller on account of his principal for which the broker is by usage liable as principal. (16.) Money lent for the purpose of playing an illegal game cannot be recovered (McKinnell v. Robinson, 3 M. & W. 434); bat money paid at the implied request of the principal in fulfilment of a wagering contract may

Immoral Consideration (u).

Statement of Defence to Annuity Deed. 1. The defendant says that at the time of the execution of the deed referred to in the paragraph of the statement of claim the said M. L. L. was a married woman, and was co

Defence of immorality to action on a deed.

Illegal
contracts.

Defence of
Illegality
to be
specially
pleaded.

be recovered back. (Rosewarne v. Billing, 33 L. J. C. P. 55.) A bond given to secure payment of a racing debt is void. See as to wagers 23 & 24 Vict. c. 28, repealing Sir John Barnards' Act as to wagers.

Letting for illegal purpose.]-An agreement to let rooms intended for the purpose of delivering blasphemous lectures is not binding, and a landlord, though he assigned another ground for refusing to perform his contract, can set up this defence. (Coran v. Milburn, L. R. 2 Ex. 230.) See infra as to letting for immoral purposes.

Contracts made on Sunday.]-By 29 Car. 2, c. 7, s. 1, “ No tradesman, artificer, workman, labourer, or other person whatsoever shall do or exercise any worldly labour, business, or work of their ordinary callings upon the Lord's-day or any part thereof, works of necessity and charity only excepted.” The contract must be completed on the Sunday to bring it within this provision. (Williams v. Paul, 6 Bing. 653; Blozsome v. Williams, 3 B. & C. 232.)

Contracts in restraint of trade.]-Contracts in general restraint of trade are illegal.

See for further information on this subject notes to Mitchel v. Reynolds, 1 Smith L. Cas. 7th ed. 406.

The defence of illegality should, even formerly, have been specially pleaded, and it was not sufficient to state merely that the contract was illegal, but the particular facts should be stated from which the illegality as a matter of law could be inferred. (Ransford v. Copeland, 6 A. & É. 482.) This is in conformity with the present rules of pleading. Where the defence is not pleaded, and the illegality appears in the plaintiff's evidence, it seems no use can be made of it by the defendant. (Fenwick v. Laycock, 1 Q. B. 414.) But, quære, could a judge give judgment for a plaintiff after his knowledge was directed to the illegality? He would probably be not unwilling to allow the pleadings to be amended under such circumstances.

(a) Any person who is a party to an immoral contract, or a contract involving encouragement to immorality, cannot recover damages for its breach. Thus, charges for board and lodgings by a brothel-keeper can. not be recovered by him in an action against a prostitute. (Howard v. Hodges, 1 Selw. N. Prius, 13th ed. 80.) So, for rent of a room let to a prostitute with knowledge of her character, and that it was to be used for the purpose of prostitution, or for rent accrued due after becoming aware of the purpose for which it was taken. (Smith v. White, L. R. i Eq. 626.) So, the hire for a brougham supplied to a prostitute with a knowledge of her character, and that it was to be used by her for the purpose of attracting men. (Pearce v. Brooks, L. R. 1 Ex. 213.) It is not necessary in order to preclude persons letting or selling to prostitutes from recovering rent, hire, or price that the plaintiff should have looked expressly to the proceeds of prostitution for payment. (Id.)

But a person selling goods to a prostitute not evidently purchased to enable her to carry on prostitution, is not precluded from recovering the price. (Bonry v. Bennet, 1 Camp. 348.) So, where the plaintiff has been employed to wash clothes, consisting principally of expensive dresses, for a prostitute, knowing her to be such. (Lloyd v. Johnson, 1 B. & P. 430.) So, a person letting rooms, not knowing they were to be used for the purpose of prostitution. (Smith v. White, supra.)

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habiting with the defendant, and it was intended that such Defence of cohabitation should continue, and that the defendant and the immorality

to action said M. L. L. should, after the execution of the said deed, im- on a deed. morally continue to commit adultery.

2. And the defendant says that the defendant was induced to execute the said deed in consideration and by reason of a contemplated and anticipated continuance of such adultery, and the same was the only consideration for such deed.

Infancy (a). Statement of Defence to an Action against an Infant. The defendant at the time of making the alleged promise Defence of in the statement of claim mentioned was under the age of infancy to

on a twenty-one years.

contract.

.

A bond or agreement given in consideration of future illicit cohabitation is illegal, but a bond or deed for payment by way of provision after past cohabitation is valid (Nye v. Mosely, 6 B. & C. 133); though a simple contract founded thereon is not, as there is no consideration, (Binnington v. Wallis, 4 B. & Ald. 650 ; Beaumont v. Reeve, 8 Q. B. 483.)

It is necessary in setting up a defence of immorality to state the facts on which the allegation of immorality is founded, in the same manner as in cases of illegality of which it is a species.

(a) By Order XVI. r. 8, “... Infants .. may sue as plaintiffs by their next friends in the manner practised in the Court of Chancery before the passing of this Act; and infants may in like manner defend any action by their guardians appointed for that purpose."

The question of the liability of infants is now mainly regulated by the 37 & 38 Vict. c. 62 (1874). The 1st section provides that all contracts Infants not whether by specialty or simple contract henceforth entered into by infants now liable for the repayment of money lent or to be lent, or for goods supplied or to on any conbe sapplied (other than contracts for necessaries), and all accounts stated tracts exwith infants, shall be absolutely void, provided always that this enact. cept for ment shall not invalidate any contract into which an infant may by any necessaries. existing or future statute, or by the rules of common law or equity, enter, except such as now by law are voidable.” And by sect. 2, "

“no action shall be brought whereby to charge any person upon any promise made after full age to pay any debt contracted during infancy, or upon any ratification made after full age of any promise or contract made during infancy, where there shall not be any new consideration for such promise or ratification after full age.

It will be seen that the first section of this Act excepts “necessaries," which are generally defined to be food, drink, apparel, lodging, and education ; but much would depend on the fortune and position of the infant, and proof of such fortune, &c., lies on the plaintiff. (Ryder v. Wombrell

, L. R. 4 Ex. 32, Ex. Ch., reversing decision in S. c. in the Exchequer.) But the judge may by his decision relieve the plaintiff of such onus; he has to decide whether such onus is or is not on the plaintiff, and in the former case whether there is any proof to satisfy the onus and to nonsuit if there is not, instead of leaving the ques

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