To set-off. * 605 Statute of l mitations to a the said B prays may be inquired of by the country, &c. And the said C D doth the like, therefore, &c. [award of venire by bill or original as in Tidd's Prac. Forms, 187–189.] *[Precludi non, as ante, 593. second precedent.] Because he saith, that the said several supposed debts or causes of setplea of set-off. off in the said last plea mentioned, did not, nor did any or (c) either of them arise or accrue to the said CD at any time. within six years next before the exhibiting of the bill of him the said AB, in this suit, (or "the suing out of the original « writ aforesaid,") in manner and form as the said CD hath above in his said last plea in that behalf alleged. And this,. &c. [conclude with d verification, as ante, 594.] To a plea of court of con defendant in debted in more than 40s. (d) [Precludi non, as ante, 593. second precedent.] Because he science act, saith, that the said C D, at the time of the commencement of the said action of him the said A B, was indebted to him the said A B, upon and by virtue of each and every of the said several promises and undertakings in the said declaration mentioned, in the sum of 40s. and upwards, to wit, in the said sum of . in each and every of the said respective counts of the said declaration mentioned, in manner and form as he the said A B hath above in his declaration in that behalf com plained against the said CD, to wit, at, &c. aforesaid, and this he the said AB prays may be inquired of by the country. To statute limitutions. Toplea of non assumpsit in fra sex nos that defendant did under take, &c.(e) &c.. [Precludi non, as ante, 593. second precedent.] Because he saith, that the said CD did, within six years next before the exhibiting the bill of him the said A B in this behalf, undertake and promise in manner and form as he the said AB hath *606 above thereof complained against him, to wit, at, &c. To statute li- [Precludi non, as ante, 593. second precedent.] Because he saith, that the said several causes of action in the said declaration mentioned, and each and every of them, did accrue to him the said A B, within six years before the exhibiting of the said bill of him the said A B, (or "next before the commencement of this suit," following the language of the plea,) in manner and form as he the said A B hath above complained against the said C D, to wit, at, &c. aforesaid, and this he the said A B prays may be inquired of by the country, &c. [Precludi non, as ante, 593. second precedent.] Because he To plea of ac vit infra sex annos, that the tio non accre did accrue, &c.(f) cause of action A writ sued out within six years.(g) (f) See the note to the last pre- ante, 598, 599. &c. When continued cedent. (g) See a precedent of one writ issued, 2 Burr. 951. 1 Wils. 141. 3 Wentw. 203. id. Index, 20. and ante, 597. and of a writ with continuances, Lil. Ent. $2. Thomp. Ent. 151. 3 T. R. 662. 3 Wentw. Index, 20, and process is pleaded, the first must be To statutè limitations. That plaintiff was abroad, and the action was commenced within six years after his return.(i) That defend ant was a action Was commenced within six years after his return.(k) and *[Precludi non, as ante, 593 second precedent.] Because he saith, that he the said A B, at the time when the said several causes of action in the said declaration mentioned, and each every of them did accrue to him the said A B, was in parts beyond the seas, to wit, at, &c. and that he the said A B, afterwards, to wit, on, &c. returned from the said parts beyond the seas into this kingdom, and which said return of the said A B, was his first return into this kingdom from the said parts beyond the seas, after the accruing of the said causes of action, and every of them to the said A B, and that the said A B exhibited his said bill against the said C D, within six years next after his the said A B's first return into this kingdom from be yond the seas, after the accruing of the said several causes of action aforesaid, or any of them unto the said ♬ B. And this, &c. [conclude with a verification, as ante, 594.] [Precludi non, as ante, 593. second precedent.] Because he broad, and the saith, that the said CD before, and at the time when the said several causes of action in the said declaration mentioned ac crued to the said .4 B, was in parts beyond the seas, to wit, at and that he the said C D, afterwards, to wit, on, &c. returned from the said parts beyond the seas into this kingdom; which said return of the said C D was his first return into this kingdom from the said parts beyond the seas, after the accru ing of the said several causes of action, to wit, at, &c. afore. said. And the said A B further saith, that he the said AB exhibited his bill in this cause, and brought his said action thereupon against the said C D, *within six years after his the said CD's first return into this kingdom, after the accruing of the said several causes of action, to wit, at, &c. aforesaid. And this, &c. [conclusion with a verification, as ante, 594.] * 608 (i) See the precedent, 3 Wentw. 205. This replication is founded on the 21 Jac. I. c. 16. s. 7. See 2 Saund. 121. a. b. See the notes to the next precedent. (k) See the precedent, 1 Wentw. 527. This replication is founded upon the 4th Ann. e. 16. s. 19. and not on the 21st Jae. I. c. 16. See 2 Saund 121. a. b. If the defendant were in this kingdom at the time the cause of action accrued, this replication will be insufficient, for when once the statute of limitations begins to run, no subsequent disability prevents its opera tion, 1 Wils. 134. 4 T. R. 310. cations to statute of limita The other replications to the statute of limitations may be, Other replithat the debts or accounts were due between merchants, in which cases the statute does not affect the remedy, see the tions. precedent, 6 T. R. 193. 2 Saund. 124. 127. n. b. 3 Wils. 79. or the plaintiff's infancy, 2 Saund. 118. Lutw. 243. or that he obtained a judgment which was arrested or reversed, and that he now sues within a year after such reversal, &c. 2 Saund. 63. h. or by an executor, that the testator commenced an action which abated by his death, and that the plaintiff's action was commenced recently after his death, 2 Saund. 64. in notes. 1 Wentw. 257. 8 Wentw. 204, 205. 294. executors. That defendant is exeeator.(1) [Precludi non, as ante, 593. second precedent.] Because he To pleas saith, that the said CD at the time of the exhibiting of the said bill of him the said A B was, and from thence hitherto hath been, and still is, executor of the last will and testament of the said E F deceased, and hath administered divers goods and chattels, which were of the said E F deceased, at the time of his death, as executor of the last will and testament of the said E F, to wit, at, &c. aforesaid. And this he the said A B prays may be inquired of by the country, &c. ministravit, that defendant had assets. (in) * 609 [Precludi non, as ante, 593. second precedent.] Because To plene adhe saith, that the said C D on the day of exhibiting the bill *of him the said A B in this behalf, had divers goods and chattels which were of the said E F deceased, at the time of his death, in the hands of him the said CD as executor (or "administrator") as aforesaid to be administered, of great value, to wit, of the value of the damages sustained by him the said AB by reason of the premises in the said declaration mentioned, † and wherewith the said C D as executor (or "administrator") as aforesaid, could, and might, and ought to (1) See the plea, unte, 450. and the precedents of replications, 1 Wentw. 201. 3 Wentw. 211. and 294. Rast. Ent. 322. b. since the commencement of the suit, (m) As to this replication, see Com. Dig. Pleader, 2 D. 9. If assets 101. have come to the defendant's hands Against exe- have, satisfied those damages, and this he the said A B prays may be inquired of by the country, &c. cutors. The like to a [Same as the last precedent to the obelisk, and then proceed as plea of bonds or judgments follows:] Over and beyond the said goods and chattels in the outstanding. said last plea admitted to be in the hands of the said CD to be administered, and more than sufficient to satisfy and pay the monies due and owing upon and by virtue of the said writings obligatory and judgments in the said last plea mentioned, and wherewith, &c. [conclude as in the last precedent from the obelisk.] That defend ant had assets at the time he had notice of the writ. * 610 That after of the bill,and before the plea, assets came to de When the defendant pleads that he had no assets at the time of exhibiting the bill, and in point of fact he had assets at the time he had notice of the action, and before the plaintiff declared unduly paid other debts of equal or inferior de gree, without a judgment having been obtained for them, (see Com. Dig. Administration, C. 2. Dyer, 32. a. 1 P. Wms. 295. 3 P. Wms. 401.) the plaintiff may reply the issuing of the writ, and the service thereof, on the defendant, and that he then had assets, see the precedents, 3 Wentw. 214.239. but as it appears from Dyer, 32. a. and Com. Dig. Administration, C. 2. that under the general plea of plene administravit, the defendant is not at liberty to give in evidence any payment after notice of the plaintiff's action, this special replication may not be necessary. *[Precludi non, as ante, 593. second precedent.] Because the exhibiting he saith, that he exhibited his bill in this suit against the said C D as executor as aforesaid, heretofore, that is to say, upon, &c. and that after the exhibiting the said bill, and before the time of pleading the said plea of the said C D, to wit, on, &c. aforesaid, and on divers other days and times between that day and the day of pleading the said plea, divers goods and chat fendant's hands.(n) |