* 441

large sum of money, to wit, the sum of 1. of lawful money Set-off".
of Great Britain, for [here state the subject matter of the set-off
according to the fact, the usual *allegations are as in the fire-
cedents, post, 442 to 448. and when they do not apply, the set-
off may be stated as in the counts in indebitatus assumpsit, ante,
pages 5 to 70.] which said sum [or "sums"] of money, so
due and owing from the said AB to the said CD as afore-
said, exceeds [or "exceed"] the damages sustained by the
said AB, by reason of the non-performance by him the said
CD, of the said several supposed promises and undertakings,
in the said declaration mentioned, and out of which said sum
[or "sums"] of money, so due and owing from the said A B
to the said C D, he the said C D is ready and willing, and
hereby offers to set off and allow to the said AB the full
amount of the said damages, according to the form of the
statute in such case made and provided. And this, &c. [con-
clude with a verification, as ante, 422. sixth precedent.]

In the King's Bench, (or “ C. P." or "Exchequer.")

Term, 48 Geo. III,

€ D
ats.

And the said C D, by E F his attorney, comes and deAB. fends the wrong and injury, when, &c. and says, that he did not undertake or promise in manner and form as the said A B hath above thereof complained against him the said C D, and of this he the said CD puts himself upon the country, &c.

General issue

and notice of

set-off.(z)

(u) In order to save the expense of a rule to plead double, and the additional expense in the length of the paper book, it is in general more advisable to give notice of set-off than to plead it, except where the debt on

either side accrues by reason of a
penalty contained in any bond or spe-
cialty, in which case the set-off must
be pleaded, 8 Geo. II. e. 21 s. 4
2 Geo. II. c. 22, s. 15.

|

Set-off
The notice.

In the King's Bench, (or " C. P." or " Exchequer.")

(w)

* 442

Plea or notice

signees, executors, &c.

Take notice, that the above-named defendant on the *trial of this cause will give in evidence, and insist that the abovenamed plaintiff, before and at the time of the commencement of this suit, was and still is indebted to the said defendant in the sum of. of lawful money of Great Britain, for [here state the subject matter of the set-off, as in the following precedents, and precisely as in a plea of set-off, except that instead of the names of the parties, insert the words “plaintiff” and "defendant," and proceed as follows:] and that the said defendant will set off, and allow to the said plaintiff on the said trial, so much of the said sum of. so due and owing from the said plaintiff to the said defendant, against any demand of the said plaintiff, to be proved on the said trial, as will be sufficient to satisfy and discharge such demand, according to the form of the statute in such case made and provided.(x) Dated this day of A. D..

Yours, &c.

E F, defendant's attorney.

In an action by or against assignees, executors, &c. the plea of set-off, in an or notice of set-off, is nearly similar to the above precedents, and action by or against as states that the bankrupt at the time of his bankruptcy, or the testator at the time of his death, was indebted, c. (omitting the words," before and at the time of the commencement of this suit, and still is,") and after setting forth the subject matter of the debt in the usual form, alleges, "which said sum of money is still wholly unpaid and unsatisfied, and the said plaintiffs as assignees for as "executors") as aforesaid, before and at the time of the commencement of this suit, were and still are indebted to

(w) The pleader, in preparing the notice of set-off, subscribes it at the foot of the general issue, or other pleas; but the notice is a practical

proceeding, and does not appear upon the record.

(x) 2 Geo. II. c. 22, s. 13.

ม

זי

the said C D in the amount thereof." The plea or notice is to Set-off. conclude in the usual form, as in the above precedents.

[Commencement and conclusion of the plea or notice of set- Set-off on a judgment.(y) off as ante, 440 to 442.] Upon and by virtue of a certain. * 443 judgment which he the said C D, heretofore, to wit, in term, in the year of the reign of our said lord the king, in the court of our said lord the king, before the king himself, (or if in C. P. say, " before his majesty's justices of the bench at Westminster, in the county of Middlesex,) recovered, against the said A B in a certain plea of trespass on the case, upon promises, whereby it was considered and adjudged, that the said C D should recover against the said A B the said sum of. for his damages which he had sustained, as well by reason of the not performing of certain promises and undertakings before then made by the said A B to the said CD, as for his costs and charges by him about his suit in that behalf expended,(z) whereof the said A B was convicted, as by the record and proceedings thereof remaining in the said court of our said lord the king, before the king himself, (or in C. P.) "in the said court of our said lord the king of the bench aforesaid,") more fully appears, which said judgment still remains in full force and effect, not reversed, annulled, discharged, satisfied, or made void.

sance in anocourt,

contract.

[Commencement and conclusion of plea or notice of set-off, as On a recogniante, 440 to 442.] Upon and by virtue of a certain recog- ther nisance, he the said A B having, before the commencement of and on simple this suit, to wit, in term, in the our said lord the king, come in his own proper person into the court of our said lord the king, before the king himself, the said court then and still being holden at Westminster, in

year of the reign of

(y) See the precedents, 3 Wentw. 160, 161. 1 T. R. 557. 22 vol. MSS. 261. 324. and the replication thereto. In these precedents, the verification

VOL. II.

of the plea is not by the record, bat
as ante, 422. sixth precedent.

(z) The judgment is to be descri-
bed according to the fact, see the pre-
cedents, ante, 181 to 183.

[ 50 ]

Set-off.

* 444

On simple contract.

For rent due on a lease. (a)

* 445

the county of Middlesex, (or if in the Common Pleas, see the form, ante, 179.) and then and there in the said court acknowledged himself to owe to the said C D the sum of ➡. of *lawful money of Great Britain, to be paid to the said C D, when he the said A B should be thereunto afterwards requested, which said sum of. he the said AB for himself and his heirs, then and there consented and granted should be made of his and their lands, goods and chattels, and should be levied to the use and behoof of the said C D, (or if in C. P. see the form, ante, 179.) and which said recognisance is still in full force, strength and effect, not paid off, annulled, or satisfied, as by the said recognisance remaining of record in the said court of our said lord the king, before the king himself, will fully appear. -And the said C D further saith, that the said A Bat the time of the exhibiting of the bill of him the said AB against him the said C D in this behalf, at, &c. aforesaid, was and still is indebted to him the said C D in the further sum of. of like lawful money, for, &c. [set-off on money counts, as post, 446. and conclude the plea or notice of set-off, as ante, 441, 442.

[Commencement and conclusion of plea or notice of set-off, as ante, 440 to 442.] Upon and by virtue of a certain indenture of lease, made heretofore, to wit, on, &c. at, &c. aforesaid, between the said C D of the one part, and the said A B of the other part, (the counterpart of which said indenture, sealed with the seal of the said CD, the said C D now brings here into court, the date whereof is the day and year last aforesaid,) whereby the said C D demised certain tenements, with the appurtenances therein mentioned, to the said A B for a certain term of years therein mentioned, to wit, for the term of years, from, &c. yielding and paying, during the said term, the yearly rent or sum of. on certain days therein-mentioned, *to wit, on, &c. and in and by which said indenture, he the said A B covenanted with the said C D to pay him the said rent of — on the days aforesaid, of which said rent, afterwards, to wit, on,

(a) If rent be due on a lease, the set-off' should not be for use and occu

pation, but as above. See Bull. N. 1'. 179. Tidd's Prac. 3d edit. 607.

&c. a large sum of money, to wit, the said sum of -, for
years of the said term then elapsed, became, and was, and
still is, in arrear and unpaid, from the said AB to the said
CD, to wit, at, &c. aforesaid.

[Commencement and conclusion of plea of set-off, as ante, 440,
441] Upon and by virtue of a certain writing obligatory
made by the said A B heretofore, to wit, on, &c. at, &c. afore-
said, and sealed with his seal, and now shewn to the court of
our said lord the king, before the king himself, (or in C. P.
"to his majesty's justices here,") the date whereof is the same
day and year last aforesaid, whereby he the said A B became
held and firmly bound unto the said CD in the penal sum of
of like lawful money, to be paid to the said C D when
he the said A B should be thereunto afterwards requested,
which said writing obligatory was and is conditioned for the
payment of a certain sum of money, to wit, the sum of -. at
a certain time therein mentioned, and which had elapsed be-
fore the commencement of this suit, and which said writing
obligatory at the time of the commencement of this suit, was
and still is in full force and effect, not released, paid off, satis-
fied, cancelled, or otherwise made void, and at the time of the
commencement of this suit, there was and still is due and owing
from the said A B to the said C D, upon the said writing obli-
gatory, by the condition thereof, a certain sum *of money, to wit,
the said sum ofl. (the sum first alleged to be due,) to wit, at,
&c. aforesaid.

Set-off.

Set-off on a bond.(b)

* 446

[Commencement and conclusion of plea, or notice of set-off, as On a bill acante, 440 to 442.] Upon and by virtue of a certain bill of exchange, bearing date the

day of

cepted by plaintiff.(b)

A. D.

here