PLEADING AND EVIDENCE FOR THE PLAINTIFF. 



183 



horse has been warranted to be a " thorough-broke gig 

 horse," the jury must be satisfied that a person of ordinary 

 skill cannot safely drive him (s). 



To prove a rescission, the plaintiff must either prove that Proof oi 

 the defendant accepted the horse when tendered, or he must rescission, 

 show a rescission by mutual agreement. 



The plaintiff may prove a tender by showing that he Proof of 

 sent the horse back to the defendant, who refused to accept tender, 

 it (t) ■ or that he sent the horse to livery, and informed 

 the defendant that he had done so {u). 



Pleading and Evidence for the Defendant. 



The ordinary evidence of detention is that the defendant 

 refused to deliver the goods when demanded {x). It is no 

 defence to show that the goods were not in his possession 

 when demanded if he had improperly parted with the 

 possession («/), as where he had sold them, or lost them by 

 carelessness (s). 



Where goods have been deposited or pledged with the 

 defendant as part of an illegal or immoral agreement, the 

 maxim " In pari delicto p)otior est conditio defendentis " 

 applies, and the plaintiff cannot recover them («). 



In an action for goods bargained and sold the defendant, 

 provided that he plead them specially, may rely on any of 

 the following facts, viz., that the defendant never bought a 

 horse of the plaintiff at all, or that the sale was invalid 

 under the Statute of Frauds (b), or s. 4 of the Sale of Goods 

 Act, 1893 : or where he did not see the horse before pur- 

 chase he may show that it does not correspond with its 

 description (c) ; or where it has been ordered for a parti- 

 cular purpose, for instance, to run in a carriage, he may 

 show that it was unfit for that purpose (d) ; or that it was 

 not the horse which he bargained to purchase, though of 



Defence for 

 detention of 



Defence for 

 goods bar- 

 gained and 

 sold and for 

 not accepting. 



C. p. 168. 



(«) Taylor v. Chester, L. R., 4 Q. 

 B. 309; 38 L. J., Q. B. 225. 



(A) Johnson v. Dodgson, 2 M. & 

 W. 653 ; Mliott v. Thomas, 3 ibid. 

 170; Biittermere v. Hayes, 5 ibid. 

 456. 



{c) See Street v. Blay, 2 B. & Ad. 

 456 ; Parsons v. Sexton, 4 C. B. 905. 



(d) Chanter v. Hopkins, 4 M. & 

 W. 406. 



