صور الصفحة
PDF
النشر الإلكتروني
[ocr errors]

SATISFACTION.

of exchange

payable to a 3d

the usage and custom of merchants, made his certain bill of exchange ACCORD AND in writing, bearing date the day and year last aforesaid, and then and there directed the said bill of exchange to the said C. D. and thereby required the said C. D. two months after the date thereof, to pay to E. F. person (p). or his order, the sum of L., for value received, and then and there delivered the said bill of exchange to the said E. F. which said bill of exchange the said C. D. afterwards, to wit, on, &c. last aforesaid, at, &c. aforesaid, upon sight thereof accepted, according to the said usage, and custom of merchants, for and on account of the said several promises and undertakings in the said declaration mentioned; and by reason thereof, and according to the said usage and custom of merchants, he the said C. D. then and there became, and was and still is liable to pay to the said E. F. or his order, the said sum of money in the said bill of exchange specified according to the tenor and effect of the said bill of exchange, and of his said acceptance thereof. And this, &c. [Conclude with a verification, as ante, 470, sixth precedent.]

[Actio non, as ante, 469, first precedent to the t.)-Because he says, ARBITRAMENT. that after the making of the said several promises and undertakings in Arbitrament the said declaration mentioned, and before the day of the exhibiting of and award (q). the bill of the said A. B. against him the said C. D. in this behalf, [⚫ 485] (or, if in C. P. or by original, “ before the commencement of this suit,") to wit, on, &c. at, &o. aforesaid, the said A. B. and the said C. D. submitted themselves (that is to say) by two mutual bonds of arbitration, bearing date respectively the day and year last aforesaid, to the arbitration of and engaged in all things well and truly to stand to, obey, abidé, perform, fulfil, and keep the award, order, arbitrament, final end and determination of E. F.and G. H. arbitrators, indifferently elected and named, as well on the part and behalf of the said A. B. as of the said C. D. to arbitrate, award, order, judge, and determine of and concerning all and all manner of action and actions, cause and causes of action, suits, bills, bonds, specialties, judgments, executions, extents, quarrels, controversies, trespasses, damages, and demands whatsoever, at any time theretofore had made, moved, brought, commenced, sued, prosecuted, done, suffered, committed, or depending by and between the said parties, or either of them, so as

dent.

(1) See the note to the last prece- particular part of the plea, and thereby admit the residue, see the precedents, 3 Wentw, Ind. 8. Morgan's Prec. 235. 7. 508. Lutw. 52. Clift. Ent. 195, Kydd on Awards, 2d edit. 465. Most of the precedents state the defendant's performance of the award; but this seems unnecessary, Kydd. 390. 392. 1 Ld. Raym, 122. 1039.

(9) As to this plea in general, see Com, Dig. tit. Accord, D. Bac. Ab. Arbitrament, G. Arbitrament and award may be given in evidence under the general issue, non assumpsit; but it is frequently advisable to plead it, in order to compel the plaintiff in his replication to take issue on some VOL. II.

2 Z

ARBITRAMENT. the said award should be made by the said arbitrators, under their Time enlarg. hands, and ready to be delivered to the parties in difference, or such

ed.

2

of them as should desire the same on or before, &c. next; which time for making the said award was afterwards and before the time for making the same expired, to wit, on, &c. at, &c. aforesaid, by consent of the said A. B. and the said C. D. enlarged until, &c. then next, and it was then and there agreed by and between the said A. B. and the said C. D. that the award made before that time between them should be Time further binding and conclusive between them; which last-mentioned time for enlarged. making the said *award, was afterwards, and before the said enlarged [486] time for making the said award had elapsed, to wit, on, &c. at, &c. aforesaid, by consent of the said A. B. and the said C. D. further enlarged until, &c. then next, and it was then and there agreed between the said A. B. and the said C. D. that the said award before that time made between them, should be binding and conclusive between them. The award. And the said C. D. further saith, that the said arbitrators, before the expiration of the said last-mentioned time limited for making their award, to wit, on, &c. at, &c. aforesaid, took upon themselves the burthen of the said arbitration, and having duly examined and considered the subject matters in dispute between the said A. B. and the said C. D. they the said arbitrators did make their award in writing under their hands, of and concerning the premises, and of and concerning the said promises and undertakings in the said declaration mentioned, and ready to be delivered to the said parties in difference, and did thereby then and there award that, &c. [here set forth the award] as by the said award bearing date, &c. reference being thereunto had, will more fully appear (r). And this, &c.[Conclude with a verification, as ante, 470, sixth precedent.]

JUDGMENT

term, in the

[Actio non, as ante, 469, first precedent to the †.]. Because he saith RECOVERED. that the said A. B. heretofore, to wit, in Judgment recovered in K. year of the reign of our said lord the king, in the court (4) of our said B. C. P.or Ex-lord the king, before the king himself, the same court then and still chequer (s) being holden at Westminster, in the county of Middlesex, [or, if the [* 487]

(r) As to the averment of perfor- were pleaded in the same court, the mance, see ante, 484. n. q. plaintiff might, instead of replying, crave oyer of the record, or at least a note in writing of the term and number roll, and sign judgment if it were not given in convenient time, Tidd's Prac. 3d edit. 689.

(s) A judgment recovered may be given in evidence under general is sue, 2 Stra. 733. 1 Saund. 67. 1. As to this plea, and the replication thereto, see 1 Saun. 92. n. 3 This plea is usually adopted for delay, in which case the judgment should be stated to have been recovered in a different court to that in which the plea is pleaded, for if the recovery

(1) The plea must state the term, year, and court in which the judgment was recovered, 1 Saund. 329. n. 1.

66

RECOVERED.

plea be of a judgment recovered in the Common Pleas, say, "before JUDGMENT Sir James Mansfield, Knight, and his companions, then his Majesty's Justices of the Bench at Westminster, in the county of Middlesex ;" or, if in the Exchequer, say, “ before the Barons of his Majesty's court of Exchequer at Westminster, in the county of Middlesex,"] impleaded the said C. D. in a certain plea of trespass on the case on promises to the damage of the said A. B. of L.-, for the not performing the very same identical promises and undertakings in the said declaration mentioned; and such proceedings were thereupon had in the said court in that plea, that afterwards, to wit, in that same

-term the said A. B. by the consideration and judgment of the said court recovered in the said plea against the said C. D. L., for his damages which he had sustained, as well on occasion of the not performing the same identical promises and undertakings, in the said declaration mentioned, as for his costs and charges by him about his suit in that behalf expended, whereof the said C. D. was convicted; as by the record and proceedings thereof still remaining in the said court of our said lord the king, before the king himself, [or if in C. P. "of the Bench aforesaid," or in the Exchequer," of the Exchequer aforesaid,”] at Westminster aforesaid, more fully and at large appears (u). Which said judgment still remains in full force and effect, not in the least reversed, satisfied, or made void (x). And this, &c. [Conclude with a verification by the record, as ante, 470, seventh precedent.] (4)

RELEASE.

[488]

[Actio non, as ante, 469, first precedent to the t.]-Because he says that after the making of the said several "promises and undertakings in Release (y). the said declaration mentioned, and before the exhibiting of the bill of the said A. B. against him the said C. D. in this behalf, [or if in C. P. or by original, "before the commencement of this suit,"] to wit, on, &c. (z) at, &c. aforesaid, the said A. B. by his certain writing of release, sealed with his seal, and now shewn to the said court here, the date whereof is the day and year last aforesaid, [or if the release be

(u) Willes. 126. Com. Dig. Plea composition deed by creditors to an

[blocks in formation]

insolvent, it is not usual to plead it;
it is, however, sometimes adopted as
a dilatory plea, and where a release
has actually been executed in the
usual form, it is frequently advisable
to plead it in order to narrow the
evidence on the trial.

(z) The date of the release.

(4) A plea of a recovery against and satisfaction from a third person, contains both matter of fact, and of record, and should conclude to the country. 6 Johns. Rep. 26.

RELEASE.

SET-OFF(b).

[ocr errors]

pleaded as a sham plea, or if the deed have been lost, instead of the profert, say, "which said writing of release having been lost and destroyred by accident, the said C. D. cannot produce the same to the said court here,"] did demise, release, and for ever quit claim unto the said C. D. his heirs, executors, and administrators, the said several promises and undertakings in the said declaration mentioned, and each and every of them, and all sum and sums of money then due and owing, or thereafter to become due, together with all, and all manner of action and actions, cause and causes of action, suits, bills, bonds, writings obligatory, debts, dues, duties, reckonings, accounts, sum and sums of money, judgments, executions, extents, quarrels, controversies, trespasses, damages, and demands whatsoever, both at law and in equity, or otherwise howsoever, which he the said A. B. then had, or which he should or might at any time or times thereafter have, claim, allege, or demand against the said C. D. for or by reason or means of any matter, cause, or thing whatsoever from the beginning of the world to the day of the date of the said deed, or writing of release (a); as by the said deed or writing of release reference being thereunto had will fully appear. And this, &c. [Conclude with a verification, as ante, 470, sixth precedent.]

[1st Plea General issue, as ante, 471-Second Plea, actio non, as Plea of set-off. ante, 470, third precedent to the †, and *then proceed as follows :]-be[* 489 ] cause he says, that the said A. B. before and at the time of the commencement of this suit (c) to wit, at, &c. aforesaid, was and still is indebted to him the said C. D. in a large sum of money, to wit, the sum of L.- " of lawful money of Great Britain, for [here state the subject matter of the set-off according to the fact, the usual allegations are as in the precedents, post, 491 to 497, and when they do not apply the set-off may be stated as in the counts in indebitatus assumpsit, ante, pages 37 to 109. See the common statement of a set-off for work and labour, goods sold, and money lent, paid, had, and received, interest and account stated, post, 496, and the following statements, 491 to 497.] which said sum (or "sums") of money, so due and owing from the said A. B. to the said C. D. as aforesaid, exceeds (or “exceed") the damages sustained by the said A. B by reason of the non-performance by him the said C. D. of the said several supposed-promises and un

[ocr errors]

(a) In some cases it may be neces-
sary to plead the release of the cause
of action with more precision, and to
omit the general release when those
words do not accord with the facts.
(6) See a plea of set-off founded
on an agreement where the debts

were not due in the same right, or to the same parties, 2. Taunt. 170. Taking the plaintiff in execution does not preclude the defendant from setting off the debt. 1 Taunton. 426.

(c) These words are necessary, 3. T. R. 186.

dertakings, 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 A. B. the full amount of the said damages, according to the form of the statute in such case made and provided. And this, &c. [Conclude with a verification, as ante, 470, sixth precedent.]

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

Term, 51 Geo. 3.

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

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

SET-OFF.

General Issue and notice of set-off (d).

[ ⚫ 490 ]

The notice(e).

[blocks in formation]
[ocr errors]

Take notice, that the above-named defendant on the trial of this cause will give in evidence, and insist that the above-named 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 L.— 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 setoff, 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 L., 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

(d) 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 specialty, in which case the set-off must

be pleaded. 8 Geo. 2, c. 24. s. 4. 2
Geo. 2. c. 22. s. 13.

(e) 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.

« السابقةمتابعة »