under the said commission, according to the form of the Bankruptcy.
statute in that case made and provided, and that he the said
CD duly surrendered himself to the major part of the said
commissioners, in and by the said commission named and author-
ised, and submitted himself to be from time to time examined,
touching the disclosure and discovery of his estate and
effects, and at the last of the said meetings, to wit, on the
day of
—, A. D. aforesaid, at, &c. aforesaid, finished his
examination upon oath before the said commissioners, and upon
such his examination, then and there made a full disclosure
and discovery of his estate and effects; and the said CD Defendant's
further saith, that he hath always, from the time of issuing
conformity.
forth the said commission hitherto, to wit, at, &c. aforesaid, in
* 430
all things conformed himself to the said several acts of parlia
ment, made and then in force concerning bankrupts, particu-
larly of a certain act of parliament, made in the 5th year of the
reign of his late majesty king George II. intituled, "an act to
prevent the committing of frauds by bankrupts." And the
said C D further saith, that he the said CD afterwards, to wit, certificate.
day of
A. D.. aforesaid, at, &c. aforesaid,

on the

Defendant's

duly obtained his certificate of conformity under the said com-
mission to the said statutes, made and then in force concerning Allowance
bankrupts, and which said certificate afterwards, and before thereof by the
next after in this same term, to wit, on the
aforesaid, at, &c. aforesaid, was duly
then and there being lord high

day of

A. D.

allowed and confirmed by

chancellor of Great Britain, according to the form of the

chancellor.

statute in that case made and provided; and the said CD fur- Cause of ac-
ther saith, that the said several causes of action in the said de- tion accrued
claration mentioned accrued, and cach and every of them did ruptcy.
before bank-
accrue to the said A B, before he the said CD so became a
bankrupt as aforesaid, to wit, at, &c. aforesaid; and this he the
said CD is ready to verify; wherefore he prays judgment if the
said AB ought further (b) to maintain his aforesaid action thereof
against him the said C D, &c.

.

(b) This is necessary, 6 T. R. 697.

430

Insolvent debtor. Insolvent

debtor's act,

41 Geo. III. c. 70. s. 38.(c)

* 431

Non assumpsit, except as to the sum

tic non, as ante 421. first precedent to the obelisk,] because he says that he the said C D was actually a prisoner in on the 1st day his majesty's prison of, at the suit of of March, mentioned in a certain act, made at the parliament of our lord the now king, *holden at Westminster, in the county of Middlesex, in the 41st year of his reign, intituled, "an act for the relief of certain insolvent debtors," and that afterwards, to wit, at the general quarter sessions of the peace of our said lord the king, holden at, &c. in and for the said county of on, &c. before certain then justices of our said lord the king, assigned to keep the peace of our said lord the king, in and -, he the said C D was duly disfor the said county of charged according to the said act, and the said CD further says, that the said several sums of money in the said declaration mentioned, were, and each and every of them was contracted before the said 1st day of March, to wit, at, &c. aforesaid, and this, he the said CD is ready to verify; wherefore he prays judgment if the said A B ought to have execution for his said damages to be adjudged to him in this behalf, on or against the of him the said C D, &c. person

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

C D
ats.

-(e) Term, 48 Geo. II.

And the said CD by E F his attorney, comes and deA B. fends the wrong and injury, when, &c. and as to all the rendered. (d) said several supposed promises and undertakings in the said de

claration mentioned, except as to the sum of-.(f) parcel of the said several sums of money, in the said declaration mentioned, says that he did not undertake or promise in manner and form as the said A B hath above thereof complained against him, and of Tender of that this he puts himself upon the country, &c. *And as to the said

sum ofl. parcel of the said several sums of money in the said Tender, &c. declaration mentioned, the said C D says, that the said A Bought not to have or maintain his aforesaid action thereof against him, to recover any more or greater damages than the said sum of . parcel, &c.(g) in this behalf, because he says that after the making of the said several promises and undertakings in the said declaration mentioned as to the said sum of . parcel, &c. and before the exhibiting of the bill() of the said A B against the said C D, (or if in C. P. or by original "and before the commencement of this suit,") to wit, on, &c.(i) at, &c. aforesaid, he the said CD was ready and willing, and then and there tendered and offered to pay to the said A B the said sum of

. parcel, &c. to receive which of the said CD he the said A B then and there wholly refused; and the said C D in fact further saith, that he the said C D hath always from the time of the making of the said several promises and undertakings in the said declaration mentioned, as to the said sum of . parcel, &c. hitherto, at, &c. aforesaid, been ready to pay, and still is there ready to pay to the said A B, the said sum of 7. parcel, &c. and he now brings the same here into court ready to be paid to the said A B if he will accept the same, and this he the said CD is ready to verify; wherefore he prays judgment if the said AB ought to have or maintain his aforesaid action against him to recover any more or greater damages than the * 433 said sum of -. *parcel, &c. in this behalf, &c. And for a Plea of set-off further plea in this behalf, as to all the said several supposed to the sum not tendered. (A) promises and undertakings in the said declaration mentioned,

entitle it specially, see Tidd's Prac.
3d edit. 369. or plead more specially.

(k) A plea of set-off is here given,
because it is frequently pleaded with
the plea of tender, in which case it
varies in point of form in some trißing
respects, from the usual plea of set-
off. To avoid the expense of a rule
to plead double, and in the length of
the paper book, it is however, in
general advisable to give notice of
set-off, instead of pleading it, which
notice is precisely similar in form te
the precedent, post, kit.

Tender, &c. except as to the said sum of. parcel, &c. the said CD by leave of the court here for this purpose first had and obtained, according to the form of the statute in such case made and provided, says that the said A B ought not to have or maintain his aforesaid action thereof against him, because he says that the said A B before and at the time of exhibiting the bill of him the said A B against him the said CD in this behalf, (or, if in C. P. or by original," before and at the time of the commencement of this suit,")to wit, at, &c. aforesaid, was, and from thence hitherto hath been, and still is indebted to the said CD in a large sum of money, to wit, the sum of 1. of lawful money of Great Britain, for, &c. (here state the subject matter of the set-off, as post, 442 to 448. and then proceed as follows:) which said sum of money so due and owing from the said AB to the said C D, exceeds the damages sustained by the said AB by reason of the non-performance by him the said CD of the said severa supposed promises and undertakings in the said declaration mentioned, except as to the said sum of 1. parcel, &c. and out of which said sum of money so due and owing from the said A B to the said CD, he the said CD is ready and willing, and hereby offers to set off and allow to the said A B the full amount of the said damages except as aforesaid, according to the form of the statute in such case made and provided. And this he the said C D is ready to verify; wherefore he prays judgment if the said A B ought to have or maintain his aforesaid action thereof against him, &c.

*[Actio non, as ante, 421. first precedent to the obelisk,] because he says, that after the making of the said several promises and undertakings in the said declaration mentioned, and before the exhibiting of the bill of the said AB against him the said CD in this behalf, (or if by original or in C P. "before the commencement of this suit,") to wit, on, &c. at, &c.

3

(1) As to accord and satisfaction in general, see Bac. Abr. tit. Accord and Satisfaction. Com. Dig. tit. Accord. Accord and satisfaction may

be given in evidence under the general issue, 1 Ld. Rayın. 566. 12 Mod. 376. and it is seldom pleaded others, i than as a sham plea for delay.

aforesaid, he the said CD delivered to the said A B one pipe of Accord and wine, of great value, to wit, of the value of 100%. in full satis- satisfaction. faction and discharge of the said several promises and undertakings in the said declaration mentioned, and which said pipe of wine he the said A B then and there accepted and received of and from the said CD in full satisfaction and discharge of the said several promises and undertakings, in the said declaration mentioned. And this, &c. [conclude with a verification, as ante, 422. sixth precedent.]

[Actio non, as ante, 421. first precedent to the obelisk,] because he says, that after the making of the said several promises and undertakings in the said declaration mentioned, and before the exhibiting of the bill of the said A B against him the said CD in this behalf, (or if by original, or in C. P. "before the commencement of this suit,") to wit, on, &c. at, &c. aforesaid, he the said C D made and sealed and as his act and deed delivered to the said A B, his the said C D's certain writing obligatory in the penal sum of 1,000l. of lawful money of Great Britain, conditioned for the payment of 500%. of like lawful money, and interest for the same by the said C D to the said AB at a certain time therein mentioned, and now elapsed, and which said writing obligatory the said C D then and there delivered to the said A B, and the said *A B then and there accepted and received the same of and from the said CD in full satisfaction and discharge of the said several promises and undertakings in the said declaration mentioned, and of all damages and sums of money thereupon due and owing, or accrued. And this, &c. [conclude with a verification, as ante, 422. sixth precedent.

The like of a bond given in satisfaction.

* 465

be- Account sta

[Actio non, as ante, 421. first precedent to the obelisk,] cause he says that after the making of the said promises and undertakings in the said declaration mentioned, and before the

(m) This plea is sustainable, 5 T. R. 513. It is generally adopted as a sham plea, particularly where the plaintiff has declared only on the common

VOL. II.

counts, and a note or bill has been given but not paid when due, so as to put the plaintiff to shew in his replication that the note was not paid, &c. [49]

ted, and deli

very and acceptance of

defendant's promissory note.(m)