1

the said C D unless he the said CD would make and seal, Duress.
and as his act and deed deliver the said writing in the said de-
claration mentioned. And the said C D did then and there, by
reason and in consequence of the premises in this plea men-
tioned, and for fear of further wounding and of mayhem, and on
no other account whatsoever, make and seal, and as his act and
deed deliver the said writing. And this, &c. [conclude as in the
last precedent.]

[Commencement as in the last plea.] Because he says, that he
the said CD, at the time of making of the said writing, to wit,
on the said
day of
A. D., aforesaid, at, &c.
was imprisoned by the said A B and others in collusion with
him, and then and there detained in prison, until by the force
and duress of imprisonment of him the said CD, he made the
said writing, and delivered the same to the said A B as his
deed. And this, &c. [conclude as in the last precedent. A
plea that the deed was obtained by fraud and covin was added, as
ante, 464.]

C D

ats. .[Onerari non, as ante, 462.] Because he says, that he A B.the said CD, at the time of the making of the said writing, was an infant within the age of 21 years, to wit, of the age of years, to wit, at, &c. aforesaid. And this, &c. [conclude with a verification and onerari non, as ante, 462.]

CD

debt on sim

ats. [Actio non, as ante, 421.] Because he says, that he the The like to A B. said C D, at the time of the making of the said supposed ple contract. contracts in the said declaration mentioned, was an infant within (a)

(z) See the precedents, Rast. Ent. 165. a. Bro. Red, 176. If the defendaut be still an infant, he must plead by guardian and not by attor ney, ante, 410. n. (r). In an action upon a deed infancy must be pleaded specially, 3 Burr. 1805. Com. Dig. tit. Pleader, 2 W. 22. but in assumpsit it may be given in evidence under the general issue, ante, 424.

(a) See the note to the last precedent, and the precedents Rast. Ent. 163. a. Co. Ent. 125. b. Bro. Red. 200. 207. Wentw. Index, 577, 578. In debt on simple contract, it should seem that infancy might be given in evidence under the general issue, but it is most advisable to plead it, ante, 424.

Usury. Usury to debt on bond. (d)

the age of 21 years, to wit, of the age of

years, to wit, at, &c. aforesaid, and this, &c. [conclude with a verification, as ante, 422. sixth precedens.]

C D
ats.

[Onerari non, as ante, 462.] Because she saith, that A B. at the time of the making of the said writing, she was and still is the wife of one E F, to wit, at, &c. *aforesaid, And this, &c. [conclude with a verification, and onerari non, as ante, 462.]

C D

ats.

[Actio non, as ante, 461.] Because she says, that she A B. the said C D, at the time of the making of the said supposed contracts, was and still is the wife of one E F, to wit, at, &c. aforesaid. And this, &c. [conclude with a verification, as ante, 462. sixth precedent.

[First plea, non est factum, after craving oyer of the bond and condition, as ante, 460. 2d plea, by leave, &c. and onerari non, as ante, 462.] Because he saith, that before the making the said writing in the said declaration mentioned, to wit, on the said day of A. D., aforesaid, at, &c. aforesaid, it was corruptly, and against the form of the statute in that case made and provided, agreed by and between the said A B and the said CD, that the said A B should lend and advance unto the said CD the sum of 461. of lawful money of Great Britain, and that the said A B should forbear and give day of payment thereof to the said CD until and upon the

payment thereof as aforesaid, for the time aforesaid, should Usury.
give and pay to the said A B on the said day of

A. D.

aforesaid, then next ensuing, the sum of 47. of like
lawful money, making together, with the said sum of 461. so
to be lent and advanced by the said A B to the said C D as
aforesaid, the said sum of 50%. in the said condition mentioned,
and also that the said C D should pay to the said A B interest
on the said sum of 50/. from the · day of ———, A. D.
aforesaid, until the time of the payment of the said sum of
501. in the said condition mentioned, and that for securing the
payment of the *said sum of 50%. with interest for the same as
aforesaid, to the said A B, he the said CD should make and
seal, and as his act and deed deliver to the said A B a certain
writing obligatory, and should thereby bind himself in the penal
sum of 1001. conditioned for the payment of the said sum of 501.
by him the said CD unto the said A B on the said
of, A. D., aforesaid, then next ensuing, with interest
for the said sum of 501. in the mean time, as aforesaid, to be
paid quarterly, to wit, at, &c. aforesaid. And the said C D in
fact further saith, that in pursuance of the said corrupt and un-
lawful agreement so made as aforesaid, the said A B after-
wards, to wit, on the said
afore-
said, to wit, at, &c. aforesaid, lent and advanced to the said CD
the said sum of 461. and that for the securing the repayment

day of

thereof, together with the said sum of 41.

given to the said A B as aforesaid, for the

day of ——, A. D.

A. D.

day

so to be paid and purpose aforesaid, aforesaid, then next

on the said
ensuing, with interest in the mean time as aforesaid, to be paid
quarterly, as well for the said sum of 461. so lent and advanced
as aforesaid, as for the said sum of 41. so to be given and paid
to the said A B as aforesaid, for the purpose aforesaid, making
together the sum of 501. as aforesaid, he the said CD in
further pursuance of the said corrupt and unlawful agreement,
then and there, to wit, on the said. day of, A. D. —
aforesaid, at, &c. aforesaid, made and sealed, and as his act
and deed delivered to the said A B the said writing in the said
declaration mentioned, and the said A B then and there accept-
ed and received the said writing with the said condition there-
under written, of and from him the said C D, in pursuance of
the said corrupt and unlawful agreement, and for the purpose

* 468

aforesaid. And the said C D avers, that the said sum of 41. so as aforesaid agreed to be given and paid to the said A B for the purpose aforesaid, and the interest of the said sum of 50%. so reversed and made payable to the said A B by the said condition of the said writing as aforesaid, exceeds the rate of 51. *for the forbearing and giving day of payment of 100%. for one year, contrary to the form of the statute in such case made and provided, by means whereof, and by force of the said statute, the said writing was and is wholly void in law. And this, &c. [conclude with a verification, and onerari non, as ante, 462.]

C D

ats

}

And the said CD, by E F his attorney, comes and A B.defends the wrong and injury, when, &c. and as to the said several sums of money in the said declaration mentioned and thereby demanded, except as to the sum ofl. (the sum tendered,) parcel thereof, says that he does not owe the same or any part thereof to the said A B in manner and form as the said AB hath above thereof complained against him, and of this he puts himself upon the country, &c. And as to the said sum of. parcel of the said several sums of money in the said declaration mentioned, the said CD says that the said A Bought not to have or maintain his aforesaid action thereof against him, to recover any damages by reason of the non-payment of the said sum of . parcel, &c. because he says, that he the said CD at the time when the said sum of. parcel, &c. became due and payable from him the said CD to the said A B, was and from thence hitherto hath been, and still is, ready to pay to the said A B the sum of. parcel, &c. to wit, at, &c. aforesaid, and that after the time when the said sum of 7. parcel, &c. became due and payable, and before the exhibiting of the bill of the said A B in this behalf, (or if in C. P. or by original, "before the commencement of this suit,"”) to wit, on, &c. (state the tender and profert in curiam, as in assumpsit, ante, 432.) And this he is ready to verify; wherefore he prays judgment if the said AB ought to recover any da

(e) As to the form of this plea in debt, see 1 Saund. 33. n. 2. Com. Dig. Pleader, 2 W. 28. and the pre

cedents indexed in 7 Wentw. 576, 577, 578.

mages by reason of the non-payment of the said sum of ―. Set-off. parcel, &c.

*CD ats.

* 470

[Actio non, after craving oyer, as ante, 460, 461.] Because Set on to debt A B. he says, that at the time of the exhibiting of the bill of on bond.(ƒ) the said AB against him the said C D, in this behalf, (or if in C. P. or by original, “at the time of the commencement of this suit,") there was due and owing from the said C D to the said A B upon the said writing obligatory, by the said condition thereof, for the principal and interest in the said condition mentioned, a certain sum of money, to wit, the sum of . to wit, at, &c. aforesaid; and the said CD further says, that the said A B, before and at the time of the exhibiting of the said bill, (or if in C. P. or by original, "before and at the time of the commencement of this suit,") was and still is indebted to him the said CD in a much larger sum of money than the money so due and owing from the said C D to the said A B, upon the said writing obligatory, that is to say, in the sum of. for, &c. (here state the subject matter of set-off, as in assumpsit, ante, 442 to 448.) which said sum of money so due and owing from the said AB to the said C D is wholly unpaid, and exceeds the money so due and owing from the said C.D to the said A B by virtue of the said condition of the said writing obligatory, and which said sum of money so due and owing from the said A B to the said CD as aforesaid, or so much thereof as shall be necessary in this behalf, he the said CD is ready and willing, and offers to set off and allow against the said sum of money so remaining *due and payable by the condition of the said writing obligatory, according to the form of the statute in such case made and provided. And this, &c. [conclude with a verification, as ante, 422. sixth precedent.]

(f) See the precedents, 7 Wentw. 589, 500, 591. &c. When either of the debts accrued by reason of a penalty, the debt intended to be set off must be pleaded, and the defendant cannot give notice of set-off, 8 Geo. II. c. 4. s. 5. and by the same statute in a plea of set-off to an action on a bond, the defendant must set forth the sum really due on the bond before he is VOL. II.

entitled to set off any cross demand,
6 T. R. 460. and the sum is traversa-
bie, though laid under a scilicet, id.
ibid. 3 T. R. 65. Ante, vol. 1. Index,
tit.Set-Off, see the precedents indexed
7 Wentw. 589, 590, 591. &c. The
plea of set-off to debt on simple con-
tract, resembles those in sumpit,
ante, 440 to 448.

* 471