Sidebilder
PDF
ePub
[merged small][ocr errors][merged small][merged small][merged small][merged small][merged small][merged small]

See ante, 426. n. (u). To debt on bond or other specialty brought in the name of a bankrupt, it is necessary to plead his bankruptcy specially, and the defendant cannot give it in evidence under the general issue, non est factum, as in assumpsit, see ante, 426. n. (u). The form of the plea is in 7 Wentw. 414. As to this plea, see 1 T. R. 619. 3 B. & P. 40. and ante, 426.

The plea of the statute of limitations to debt on simple contract, is similar to the plea of actio non accrevit in assumpsit, as ante, 450. As to pleading the statute in debt, see ante, vol. 1. Index, tit. Limitation, and 1 Saund. 283. note 2.35. 280. To debt on specialty, there is no plea of the statute of limitations, though after the lapse of twenty years, or even less, payment will in general be presumed of a money bond, provided the defendant plead, solvit ad, or post diem, as post, 473, 474. See Tidd's Prac. 3d edit. 19 to 22.

The pleas by executors in debt, so much resemble those in assumpsit, that it may be sufficient to refer to the precedents, ante, 450 to 458. The following precedent will shew that the principal difference between the pleadings in assumpsit and debt, is that in the latter the word "debt" is adopted instead of "damages," and see the numerous precedents, indexed in 7 Wentw. 596 to 603. Com. Dig. Pleader, 2 D. 9.

[Same as the precedent in assumpsit, ante, 451. to the obelisk, and then as follows:] Whereby he could or might pay or satisfy the debt aforesaid, or any part thereof. And this, &c. [Conclude with a verification, as ante, 422. sixth precedent.] The notes to the precedent, ante, 451. are here also applicable and see also Com. Dig. Pleader, *2 D. 9. To debt on simple contract, or on bond or other specialty, this general plea is sufficient, but it has been decided, that to debt upon a record, it must be shewn in the plea how the defendant administered, see 1 Ld. Raym, 3. Aleyn, 48. sed quære.

40

ecutors in neral.

[ocr errors]

Plene admi

nistravit be

fore notice of

the bond.(g)

[Actio non, as ante, 421. first precedent to the obelisk.] Be- Pleas by excause he saith, that after the death of the said E F, and before the said CD had any notice of the said writing obligatory in the said declaration mentioned, to wit, on, &c. at, &c. aforesaid, he the said CD had fully administered all and singular the goods and chattels, which were of the said E F deceased, at the time of his death, and which have ever come to his hands to be administered; and that he hath not, nor had he at the time when he first had notice of the said writing obligatory, or at any time afterwards, any goods or chattels, which were of the said E F deceased, at the time of his death, in his hands to be administered. And this, &c. [conclude with a verification, as ante, 422. sixth precedent.]

C D

ats. And the said C D by E F, who is admitted by the Ta bonds.
A B.
court of our said lord the king here, as guardian(i)
of the said CD, to defend for the said CD, who is an infant

wrong and said C D is within the

under the age of 21 years, comes and defends the
injury, when, &c. and says that he the
age of 21 years, to wit, of the age of
- years, to wit, at, &c.
aforesaid, and this he is ready to verify; wherefore he does not
suppose that during his minority he ought to answer the said
A B in his said plea, and he prays that the said parol may de-
mur, until the full age of him the said CD, &c.

[*Onerari non, as ante, 462.] Because he saith, that he the said CD hath not, nor at the time of the exhibiting the bill of the said AB in this behalf, (or if in C. P. or by original, “ at the time of the commencement of this suit,") nor at any time before or since, had any lands, tenements or hereditaments by descent from his said father, (or brother, &c. according to the fact,)

Parol demur. rer by an infant heir.(h)

* 473 Rien per descent by heir. (k)

(g) This plea is sometimes adopted, tit. Enfant, D. and tit. Pleader, 2 E.
but the general plea of plene adminis- 3. An infant devisee cannot pray the
travit, putting in issue the due ad- parol to demur, 4 East, 485.
ministration of the assets will in
general suffice.

(h) See the precedents, 4 East, 485. 1 Wentw. 43. As to the law, Bac. Abr. tit. Infancy, L. Com. Dig.

(i) This is necessary, ante, 410, n.

(*).

(k) See the precedents indexed in 7 Wentw. 603, 604. Rast. Ent. 172. and as to the pleas in general by an

To bonds.

Plea by a de

visee rien per devise.(!)

Solvit ad diem.(m)

* 474

Solvit post diem.(n)

in fee-simple, and this he is ready to verify; wherefore he prays judgment, if he as son, (or brother, &c.) and heir of the said G H deceased, ought to be charged with the said debt, by virtue of the said writing obligatory.

[Onerari non, as ante, 462.] Because he says that he the said C D hath not, nor at the time of the exhibiting of the bill of the said A B in this behalf, (or if in C. P. or by original,“ at the time of the commencement of this suit,") nor at any time before or since, had any lands, tenements or hereditaments, by devise from the said E F deceased. And this, &c. [conclude with a verification, and onerari non, as ante, 462.]

he says
A. D.

day

C D
ats. [Actio non, after craving oyer, as ante, 460, 461.] Because
A B.
that he the said C D, on the said
of
aforesaid, (the day of payment mentioned in
the condition,) in the said condition of the said writing obliga-
tory mentioned, paid to the said A B the said sum *of ―l. in
the said condition mentioned, together with all interest then due
thereon, according to the form and effect of the said condition,
to wit, at, &c. aforesaid. And this, &c. [conclude with a verifi
cation, as ante, 422. sixth precedent.]

C D

ats. [First plea, solvit ad diem, as in the last precedent, 2d,

A B. Suctio non, as ante, 421. third precedent.] Because he

says, that he the said C D, after the said
day of ->
A. D.
in the said condition mentioned, and before the

heir, 2 Saund. 7. n. 4. Com. Dig.
Pleader, 2 E. 3. Bac. Abr. tit. Heir,
F. The heir must plead rien per de-
scent where he has no assets, or he
will be liable personally to the amount
of the debt, 3 T. R. 685. See a plea of
retainer by an heir, 1 T. R. 454. As
to what are assets by descent, see
ante, 159. n. (w), and Selwyn's N. P.
523. n. 65. 2 Saund. 7. As to the
plea of rien per descent præter a term
fo life or years, 2 Saund. 7. n. 4.
1 Salk. 354. 2 Wils. 49. See a

precedent of rien per descent præter a rectory, &c. 1 Rast. Ent. 172. b. Lil. Ent. 180.

(1) See the precedents, 7 Wentw. 603 to 605. The devisee must be sued jointly with the heir, ante, 161. n. (b), but he should plead sepa rately.

(m) See Com. Dig. Pleader, 2 W. 29.

(n) This plea is given by the stat. 4 Ann. c. 16. s. 12. When execu tors plead solvit post diem, and rely

exhibiting of the bill of the said A B in this behalf, (or if in To bonds. C. P. or by original, "before the commencement of this suit,") to wit, on, &c. at. &c. aforesaid, paid to the said A B the said sum of. in the said condition mentioned, together with all interest then due thereon, according to the form and effect of the said condition of the said writing obligatory. And this, &c. [conclude with a verification, as ante, 422. sixth precedent.]

deeds.

annuity bond

no memoria!

enrolled within twenty days, according to 17 Geo III. c. 26.

[First, non est factum, after craving oyer of the bond and con- To annuity dition, as ante, 460, 461. And for a further plea, &c. one- To debt on rari non, as ante, 462.] Because he says, that no memorial of the said writing, in the said declaration mentioned, was enrolled in the high court of chancery, within twenty days of the execution thereof, according to the directions of a certain act of parliament made and passed in the 17th year of the reign of his present majesty; whereby the said writing in the said declaration mentioned is null and void. And this, &c. [conclude with a verification, and onerari non, as ante, 462.]

And for a No memorial
Because

[General issue, and second plea as last precedent. further plea in this behalf, onerari non, as ante, 462.] he says, that no memorial of the said writing, *containing the names of all the witnesses to the execution thereof, was enrolled in the high court of chancery, according to the directions of the said act of parliament, made and passed in the 17th year of his present majesty's reign, whereby the said writing in the said declaration mentioned, is null and void. And this, &c. [conclude with a verification, and onerari non, as ante, 462.]

[General issue, non est factum, after craving oyer of the bond and condition, as ante, 460, 461. And for a further plea, &c. actio non, as ante, 421.] Because he says, that he the said C D did well and truly pay to the said A B yearly and every year, the said annuity or sum of. in the said condition mentioned, by four equal quarterly payments in each year, on the several

containing the witnesses en

names of the

rolled.

* 475

Payment of the annuity on the days mentioned in

the bond.

upon the presumption of payment post diem, as well by the testator as arising from the lapse of time, it is by the executor in separate pleas, advisable in general to plead solvit

To arbitration him the said AB. And this, &c. [conclude with a verification as ante, 422. sixth precedent.]

bonds.

Other pleas to debt on arbi

tration bonds,

ke.

* 478

To bail bonds.

No process in the original action.(q)

Plea by one of

See the precedents indexed, 7 Wentw. 611, 612. Care must be taken to state with precision the ground of defence in the plea. If there were an award in fact, and the defendant rely upon some defect therein, he should not merely plead that no award was made, because he cannot under that plea go into objections to the award in point of law, 4 T. R. 588. So if the defendant rely upon the non-performance by the plaintiff of a condition precedent, or that the bond was not ready to be delivered, he should *plead those facts specially, 2 Saund. 183 to 188. 1 Saund. 327. b. As to a plea of performance generally, see the precedent and notes in 1 Saund. 324. Partiality and improper conduct in an arbitrator in making his award without hearing the defendant and his witnesses, cannot be pleaded in bar to an action on the bond conditioned for the performance of the award, but is only matter for application to the equitable jurisdiction of the court to set aside the award; neither can a parol agreement between the parties to waive and abandon the award be pleaded to such action, 8 East, 344, 1 Saund. 372. a. n. 3. 30, 31.

[Onerari non, as ante, 462.] Because he says, that no writ or process whatsoever, returnable in the 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 at Westminster,") was sued and prosecuted by and at the suit of the said A B in the said suit in the said condition mentioned. And this, &c. [conclude with a verification, and onerari non, as ante, 462.

[Onerari non, as ante, 462.] Because he says, that after the bail that the making of a certain act of parliament, made and passed in

the bond was

taken for ease and favour af ter return of writ, contrary to the stat. 23 Hen. VI. c. 9. ()

(9) See the precedents, Morg. Prec. 513, 514. 7 Wentw. 613.

(r) See precedents of pleas of ease and favour, Brownl. Red. 222. 7 Wentw. 613, 614. 1 Saund. 15. 157. 2 Saund. 76. and as to this plea in general, see Com. Dig. Pleader, 2 W. 25. 1 Saund. 163. n. 2. 2 Saund. 60. in notes. It has been usual in pre

cedents of this plea, to set forth a great part of the satute, see Lil. Eat. 126. Morg. Prac. 507. and other precedents, 7 Wentw. 613. but this is unnecessary, the statute being a public act, 2 T. R. 575. and if it be misrecited the mistake will be fatal,, Doug. 94. 97. 6 T. R. 776. 5 Wentw. 480, n, a.

« ForrigeFortsett »