PLEADING AND EVIDENCE FOR THE PLAINTIFF. 185 



not enforce acceptance, nnless the defendant has entered 

 into a new binding contract (a). 



Where a Horse is bought, and an action is brought for Proof in an 

 not deUrering him, a plea traversing the Contract or Agree- ^°*!°^ ^^r not 

 ment alleged in the Statement of Claim will put the plain- ^ ^' 



tiff to prove the Contract, namely, the alleged Consideration 

 and Promise ; and if the defendant contest it in his plead- 

 ing, the plaintiff must prove that he was Ready and Willing 

 to accept and pay for it. But where there is a traverse of 

 readiness, if nothing remain for the plaintiff to do, it lies 

 on the defendant to disprove, rather than on the plaintiff 

 to prove, the readiness and willingness to deliver {b). But 

 it will not be necessary to prove a Tender of the money (c). 

 And it is sufficient evidence that the plaintiff was Ready 

 and Willing, if within a reasonable time the Horse is de- 

 manded by him (f/), or his servant [e). 



Where the plaintiff after delivering the Horse brings an Proof in 

 action for his price, he must be prepared to prove, if Goods sold 

 denied, 1st, the ^ale, of which the Delivery of the Horse ^^ ^ ^"'^ ' 

 to the defendant and an acceptance by him will be suffi- 

 cient iwima facie evidence {e) ; 2nd, the Delivery either to 

 the defendant or his agent, or something which has been 

 done equivalent to a Delivery (,/') ; and 3rd, the Rrice 

 agreed upon for the Horse; but if the Price forms no part 

 of the Contract, or if the Contract is merely to be implied 

 from the Delivery to and acceptance by the defendant, the 

 plaintiff must be prepared to show the real and reasonable 

 Value of the Horse by persons of competent experience. 



Where the plaintiff* after a Breach of Warranty sues for Proof in 

 liepayment of the purchase-money as Money had and re- Money had 

 ceived, he may be compelled by a proper defence to prove ^^ receive . 

 the receipt of the money by the defendant, and his own 

 title to recover it as received for him {g) . He must, there- 

 fore, prove the Consideration and the Performance of it on 

 his part, namely, the Payment of a particular Price {/i) ; 



(a) Flcvins v. Downing, L. R., Bolt, 9 C. & P. G96, and Roscoe, 



I C. P. D. 220 ; 45 L. J., C. P. 695 ; N. P. 14th ed. 497. 

 35 L. T., N. S. 263. (/) Lee v. Shore, 1 B. & C. 94 ; 



(i) Rawson v. Johnson, 1 East, Smith v. Chance, 2 B. & A. 755. 



203 ; Waterhouae v. Skim/er, 2 B. See also Bartholomew v. Markwick, 



&P. 447. 33 L. J., C. P. 145, and Wehh v. 



(r) TFilkes v. Atkinson, 1 Marsh. Fairmancr, 3 M. & W. 473. 

 412; Levy\. Lord Herbert, ITaxxni. [g) Roscoe, N. P. 14th ed. 542. 



318; Tempest Y. miner, 2 G.B.'im. {h) Harvcg v. Archbold, SB. &G. 



(d) Squire v. Uimt, 3 Price, 68. 626 ; Bernasconi v. Anderson, M. & 



{e) Bennett \. Henderson, 2 Stark. M. 183; Lccson v. Smith, 4 N. & 



N, P. C. 550; and see Smith v. M. 301. 



