Arnold v. Dimon

(with the concurrence of

The answer sets up two distinct defences. The first, if true., puts an end to the claim, and the fact averred is .within the defendants’ personal knowledge. We think the rule must be, that where facts are alleged in an answer, which from their nature must be within the personal knowledge of the defendant, and which, if true, are a complete answer to the claim, he shall not set up in addition another state of facts not consistent with the previous defence. Here the defendants must rely upon one or the other of these defences, and they may elect which they will retain. They cannot stand upon both. If they were not owners of the ship, it is no matter to them whether the goods were delivered or not. If they were the owners, they ought not to deny it, and if the goods were *681delivered, or there was some. good cause for not performing their contract, let them state that defence and rely upon it.

Motion granted.