REJOINDERS IN ASSUMPSIT. tion to a plea were not necessaries. * 659 To infancy. [Actio non, ut supra.] Because he saith, that the said meat, To replica drink, washing, lodging, and other supposed necessaries, "in of infancy that the said first and second counts of the said declaration respect goods, ie. were necessa- ively mentioned to have been found and provided by the said ries, that they A B for the said CD, and the said goods wares and merchandise, in the said third and fourth counts of the said declaration respectively mentioned, to have been sold and delivered by the said 1 B to the said CD were not necessary or suitable to the degree, estate and condition of him the said CD, and that the said money in the said sixth count of the said declaration mentioned to have been paid, laid out and expended by the said AB, to and for the use and on the account of the said CD, was not so paid, laid out and expended by the said AB in and about the purchase of such necessaries, in manner and form as the said AB hath above in his said replication to the said second plea of him the said CD in that behalf alleged; and of this he the said C D puts himself upon the coun try, &c. To a replica tion to a plea of infancy that defendant when became of age con [Actio non, as ante, 658.] Because he saith, that he the said C D did not after he attained the age of twenty-one years, and before the commencement of this suit, assent to, ratify or confirm the said several promises and undertakings in the promises, that said declaration mentioned, or any or either of them, in manhe did notconner and form as the said AB hath above in his said replica firm them.(n) tion in that behalf alleged; and of this he the said CD puts himself upon the country, &c. firmed the To tender. To a replication of a 'ntitat before the fender,that plaintut hed wo cause of action at the time of issuing the writ (2) [Actio non, as ante, 658.] Because he saith, that though true it is, that he the said CD did make such promise and (17) As to this rejoinder and the 598. and see the precedent and law, evidence, 1 F. R. 648. 1 Wils. 142. 2 Burr. 952. (0) See the replications, ante, 597, * 660 undertaking, as to the said sum of . parcel, &c. before the To tender. exhibiting of the said bill of the said A B, as in and by the said bill is alleged, yet the said C D in fact saith, that he the said CD did not at any time before the issuing of the said writ of latitat as aforesaid, *promise and undertake to pay the said AB the said sum of . parcel, &c. in manner and form as the said A B hath above in his said replication in that behalf alleged; and of this he the said CD puts himself upon the country, &c. of a latitat stating the time when it was really issued, and ten der before [Actio non, as ante, 658.] Because he saith, that by the Toreplication course and custom of the said court of our said lord the king here, a writ of latitat sued out after the end of any term, is supposed to have issued out of the said court here within the term next preceding. And the said CD further saith, that the said writ of latitat in the said replication mentioned, was really and truly sued out of the said court here, by the said A B, after the 28th day of November, in the said replication mentioned, (being the last day of Michaelmas term, in the said year of our said lord the king,) that is to say, on the 8th day of December, in that year, and on the day and year last aforesaid, was signed, according to the form of the statute in such case made and provided, † and that the said CD before the said writ of latitat was so really and truly sued out of the said court as aforesaid, to wit, on the said day of -, at, &c. aforesaid, did tender and offer to pay the said sum of -. parcel, &c. to the said A B, in manner and form as he the said CD hath in his said second plea in that behalf alleged. And this, &c. [conclude with a verification, as ante, 658.] that time.(p) process out of [Actio non, as ante, 658.] Because he saith, that by The like of the course and practice of this court, a bill exhibited in the exchethe same court by any person as debtor of our lord the quer king after the commencement of any term, and before the end thereof, may, when the process upon which the same is founded, is returnable in the same term, be stated (P) See the replication, ante, 597, 598, and the precedent, 2 Burr 952 דיי 660 To tender. * 661 To replica tion to plea of tender of a prior demand, no such demand. * 662 REJOINDERS and alleged to have been exhibited at any time in such term after the cause of action, upon which such bill is founded, *is therein stated to have accrued, although in truth and in fact such bill was not exhibited at the time at which it was so stated and alleged to have been exhibited. but at a prior or subsequent time, and the said CD saith, that although the said declaration is entitled generally of this term, and although it is stated and alleged in the introductory part thereof, that the said AB came as a debtor before the barons of this exchequer, on, &c. in this same term, and complained by his bill against the said C D as present in court the same day. Yet the said CD saith, that the said bill was really and in truth exhibited by the said A B against the said C D, after the said day of that is to say, on, &c. in this same term and not before. And the said CD further says, that the said A B commenced this action, and sued out of the said court here a certain writ of our said lord the king, called a subpænt ad respondendum, being the first process in this action against the said C D, to compel his appearance herein after the hour of ten o'clock on the day of ----- in this same term, and that before the said commencement of this suit, and before the exhibiting of the said bill, to wit, at the hour of nine o'clock on the day of --- -, 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 —I. parcel, &c. in manner and form as he the said C D hath above in his said second plea in that behalf alleged. And this, &c. [conclude with a verification, as ante, 658.] [Actio non, as ante, 658.] Because he saith, that the said A B did not, after the time when the said supposed causes of action, in the said declaration mentioned, accrued, and before the said CD tendered and offered to pay the said sum of parcel, &c. as he the said CD hath in his said plea in that behalf alleged, demand the said sum of. parcel, &c. of and from the said C D or request him to pay the same, or any part thereof, in manner and form as the said AB hath above in his said replication *in that behalf alleged; and of this he the said CD puts himself upon the country, &c. &c. 662 tion to plea of To replica tender of a subsequent demand, no [Actio non, as ante, 658.] Because he saith, that the said To tender, A B did not, after the making of the said tender in the said last plea mentioned, and before the exhibiting of the said bill, demand of or request the said CD to pay to him the said A B the said sum of. parcel, &c. in the said plea mentioned, in manner and form as the said A B hath above in his said replication in that behalf alleged. And of this he the said CD puts himself upon the country, &c. [Actio non, as ante, 658.] Because he saith, that the said deed of release in the said second plea mentioned, was had and obtained fairly, and not by the fraud or covin of the said CD in manner and form as the said A B hath above in his said replication in that behalf alleged; and of this he the said CD puts himself upon the country, &c. such demand. (9) limitations. that the ac. Rejoinder [Actio non, as ante, 658.] Because he saith, that the said statute of several supposed causes of action in the said declaration mer, tioned, did not, nor did any or either of them accrue to the said A B within six years next before the issuing of the said precept (or "writ") in the said replication to the said second plea mentioned, in manner and form as the said A B hath (8) above in his said replication in that behalf alleged; and of this he the said C D puts himself upon the country, &c. [Same as the precedent, ante, 660. to the obelisk, and then proceed as follows:] And the said C D further saith, that he did not promise or undertake, in manner and form *as the said A B hath above thereof complained against him at any time within six years next before the said writ was so really and in truth issued as aforesaid. And this, &c. [conclude with a verification, as ante, 658.] tion did not accrue within six years of issuing the writ To replication of a lati the time when tat, shewing it was issued, and non assumpsit infra that time (t) * 663 sex annos of (7) See the replication, ante, 601. and the precedents, 3 Wentw. 181. 3 Wentw. Index. As to the law, see 1 Esp. Rep. 116. (r) See the replication, ante, 603. and 3 Wentw. Index, 12. and 15. VOL. II. (8) See the replication, ante, 606. and the precedents, 3 Wentw. Index, 20. &c. (t) See the replication, ante, 600. and the precedent and law, 2 Burr. 952. S Wentw. Index, 20. Statute of limitations. Traverse of issning the writ.(u) [Actio non, as ante, 658.] Because he saith, that the said writ in the said replication mentioned, was issued by the said the intent of AB with intent to attach him the said C D by pledges, and then to enter and record his appearance in the said court here, and upon such appearance so recorded and entered according to the custom of the said court here, to declare against him the said CD in a certain plea of debt upon demand for the sum of. Without this, that the said original writ was is sued with intent that the said A B upon the appearance of the said C D, should declare against him the said A B in manner and form as he the said A B hath above alleged. And this, &c. [conclude with a verification, as ante, 658.] To replication that defendant was beyond sca, &c. that plain [Actio non, as ante, 658.] Because he saith, that the said A B did not exhibit his said bill against him the said CD, within six years next after his the said C D's first return into this ti did not ex- kingdom from beyond the seas, after the accruing of the said several causes of action unto the said A B in manner and form as the said A B hath above in his said replication in that behalf alleged. And of this he the said CD puts himself upon the country, &c. hibit his bill within six years of de fendant's first return.(x) Against exe cutors, &c. To replica tion that assets had Come to hand since [Actio non, as ante, 658] Because he saith, that no goods or chattels of the said E F deceased, at the time of his death, have, since the exhibiting of the bill of the said A B against him the said CD, in this behalf, come to or been in the hands the exhibiting of him the said CD as administrator as aforesaid to be admi the bill, deny. ing the fact. nistered, in manner and form *as the said A B hath in his said replication in that behalf alleged; and of this he the said CD puts himself upon the country, &c. * 664 To replication that the [Actio non, as ante 658.] Because he saith, that the said judgments a- judgment in the said first plea of him the said CD first menfendants were tioned, was had and obtained for a true and just debt, really gainst the de obtained by fraud, denying the fraud. (x) (u) See the precedent, 1 Lutw. (y) See the replication, ante, 610. (z) See the replication, ante, 610. and the precedents, 5 Wentw. Index, 26. &e. 1 Saund. 103. in the notes. |