THE GOVERNOR AND COMPANY) To wit. And the faid governor Pica, il debet. at fuit of DA COSTA. wrong and injury, when, &c. and fay, that they do not owe the faid Jacob Mendes the faid four thousand two hundred pounds in the faid declaration mentioned above demanded or any part thereof, in manner and form as the said Jacob Mendes has above thereof complained against them; and of this they put themselves upon the country, &c. It is determined in the case of Warren . Confett, 2. Ld. Raym.1500, and 2.Str. 778. that in order to afcertain the proper plea to an action of debt upon a fealed inftrument, it is neceffary to confider whether the action is founded wholly upon the deed itself, or fubftantially; and in truth upon fome matter of fact, that is no otherwife dependant upon the deed than as its intended force and effect upon the contracting parties is defined and regulated by it. In the latter cafe the defendant is allowed either wholly to deny the deed, or to confefs and avoid it, or, under the general plea of nil debet, to deny all the facts contained in the plaintiff's declaration, and thereby to put him upon proof of all; because the deed then is only stated as inducement or explanatory of the facts that conftitute the plaintiff's cause of action, and in that cafe becomes itself a component fact; but in the former cafe (as fuppofe a bond where the deed acknowledges a debt, or debt for a penalty in a deed for not performing an agreement, When mil deben which the cafe of Warren and Confett may be pleaded was) the defendant can only deny the deed, to an action of or confefs and avoid it merely; for as the debt on an in. deed creates the debt, the plaintiff has only ftrument, and to fhew it to be in force to maintain his when the deaction upon it; and if the defendant will fendant discharge himself from it, he must either deny the deed impeach its validity, or fhew a perfor- or plead specially in avoidance of it. mance of it. I incline to think a contract of indemnity, the declaration being in debt, a cafe within the latter branch of the rule in which the defendant may plead nil debet, and put the plaintiff upon proof of all the facts of his cafe, and have therefore drawn fuch plea. But fince writing the above I find the ftat. of 11. Geo. 1. c. 30. f. 43. exprefsly gives such plea in this cafe, and puts the matter out of all dispute. T. BARROW. must ON INDENTURES. Trinity Term, 12. Geo. III. on an indenture BARGRAVE) AND the faid Robert, by A. B. his attorney, Plea of judg at fuit of comes and defends the wrong and injury, when, &c. ment recovered RHUDDE. and faith alio non; because he faith, that the faid in C. B. to an David heretofore, that is to fay, in Hilary term, in the twelfth action of debt year of the reign of, &c. impleaded the faid Robert in his ma- for non-pay. jesty's court, before fir William De Grey, knight, and his bre- ment of money. thren, then his majefty's juftices of the bench at Westminster, in the county of Middlefex, in a certain plea of debt on demand for ten pounds of and upon the very fame identical indenture mention ed ed in the faid declaration, and being for the very fame identical fum of ten pounds above demanded, and fuch proceedings were thereupon had in the faid court of our lord the king of the bench in that plea that the faid David afterwards, to wit, in that very fame Hilary term, in the twelfth year aforefaid, by the confideration and judgment of that court, recovered against the faid Robert his faid debt, and alfo fifty fhillings, which in and by the faid court of our lord the king of the bench in that plea were adjudged to him the faid David for his damages which he had fuftained, as well on occafion of the detaining of the faid debt as for his cofts and charges by him laid out about his fuit in that behalf, whereof the faid Robert was convicted, as by the record and proceedings thereof ftill remaining in the faid court of our faid lord the king of the bench at Wettminster, reference being thereto had, may more fully and at large appear, which faid judgment ftill remains in full force, ftrength, and effect, not in the leaft reverfed or made void; and this he the faid Robert is ready to verify by the faid record; wherefore, &c. if, &c. Declaration in Michaelmas Term, 25. Geo. III. NORTHAMPTONSHIRE, to wit. James Swinfew and debt against de- Elizabeth his wife, were fummoned to answer John Matcham fendant and his Coleman in a plea that they render to him twenty-four pounds of, wife, for not &c. which they owe to and unjustly detain from him, and there paying plaintiff annuity upon the faid plaintiff, by A. B. his attorney, complains, that an defendant's which was left whereas one E. M. now deceased, in her lifetime, to wit, on, him by one E. &c. and at the time of her decease hereinafter mentioned, was M. who had de- feifed in her demefne as of fee of and in divers meffuages, lands, vifed lands to and tenements, with the appurtenances, hereafter mentioned to wife, and had have been devifed by her to the faid Elizabeth Swinfew, by her made her fole then name and defcription of Elizabeth Coleman, the then wife of executrix of his Thomas Coleman, fince deceafed, to wit, at, &c. in, &c. and will before her being fo feifed the the faid E. M. in her lifetime, to wit, on, &c. defendant, and at, &c. duly made her laft will and teftament in writing, bearing out of which date the day and year aforefaid, and thereby, among ft other things, lands the annui- gave, devifed, and bequeathed unto the faid plaintiff, for and during ty was to be the time of the natural life of the faid Elizabeth the now wife of paid, &c. marriage with the faid James, then E. C. the wife of T. C. fince deceased, a certain annuity of twenty pounds of lawful money of Great Britain, to be ifluing and payable out of the faid meffuages, lands, and tenements, with the appurtenances, and to be paid to the faid plaintiff by the faid Elizabeth for and during the term of her natural life, by two half yearly payments, that is to fay, on, &c. the first payment thereof to begin and be made upon fuch of the faid feafts as fhould first happen after the deccafe of her the faid E.MG and also that the faid E. M. did in and by her faid laft will and teftament, give, devife, and bequeath the faid mefluages, lands, and tene tenements, with the appurtenances, of her the faid E. M. by the name and description of all her real estate lying and being at, &c. in, &c. unto the faid Elizabeth, the now wife of the faid James, by her then name of Elizabeth, wife of Thomas Coleman, and her affigns, to hold the fame for the term of her natural life, fhe and they paying thereout unto the faid defendant the yearly fum of twenty pounds of lawful money, by two half-yearly payments, that is to fay, on, &c. the firft payment thereof to begin and be made upon fuch of the faid feafts as (hould firft and next happen after her the faid E. M.'s decease; and the faid E. M. then and there nominated and appointed the faid Elizabeth, the now wife of the faid James, then wife of the faid T. C. fince deceafed, fole executrix of the faid will, as by the faid will, reference being thereunto had, will, amongst other things, more fully appear: And the faid plaintiff in fact fays, that afterwards, to wit, on, &c. the faid E. M. died fo feifed as aforefaid, without altering or revoking her faid will, after whose death, and after the death of the faid T. C. deceased, to wit, on, &c. the faid Elizabeth, the now wife of the faid James, then widow of the faid T. C. her late husband, then lately deceafed, the faid executrix named in the faid laft will and teftament of the faid E. M. deceased, duly proved the faid will and took upon herself the burthen of the execution thereof, and affented to the aforefaid devifes and bequests refpectively, to wit, at, &c., by virtue whereof the faid Elizabeth, the now wife of the faid James, then widow of the faid T. C. afterwards, to wit, on, &c. at, &c. became and was feifed in her demefne as of freehold, that is to fay, for and during the term of her natural life of and in the faid meffuages, lands, and tenements, with the appurtenances, fo devifed and taken as aforefaid, and out of which the faid annuity, fo devised and bequeathed to the faid plaintiff, was to iffue and be paid as aforefaid; and the faid plaintiff alfo then and there became entitled to the faid annuity fo devised to him as aforefaid: And the faid J. M. in fact further fays, that the the faid Elizabeth, the now wife of the faid James, then widow of the faid T. C. deceased, being fo feifed as aforefaid, and the faid plaintiff being fo entitled to the faid annuity as aforefaid, afterwards, to wit, on, &c. at, &c. took to husband and intermarried with him the faid James, and thereupon the faid James and Elizabeth his wife, late E. C. became and were and still are feised in right of the faid Elizabeth in their demefne as of freehold, that is to fay, for and during the term of the natural life of her the faid Elizabeth, of and in the faid meffuages, lands, and tenements, with the appurtenances, fo devised to her as aforefaid, and out of which the faid annuity, fo bequeathed and devifed to the faid plaintiff, was to iflue and be paid as aforefaid, to wit, at, &c.: And the faid J. M. in fact further fays, that after the faid James and Elizabeth his wife, late E. C. became and were fo feifed in right of the faid Elizabeth of and in the said meffuages, lands, and tenements, with the appurtenances, fo devised to her the faid E. C. as aforefaid, and out of which the aforefaid annuity, devised to the faid plaintiff as afore faid, Declaration for the arrears of an annuity, &c.&c. faid, was to iffue and be paid as aforefaid, they the faid James and Elizabeth his wife continued fo feifed until and at the time of the exhibiting of the bill of the faid plaintiff, and during all that time were pernors and in the receipt and perception of the rents, iffues, and profits thereof, and had received fufficient to pay, fatisfy, and difcharge the aforefaid annuity or yearly fum of twenty pounds fo devifed and bequeathed to the faid J. M. as aforefaid, and payable to him from the said James and Elizabeth his wife, in right of the faid Elizabeth as aforefaid; but the faid plaintiff in fact further faith, that afterwards, to wit, on, &c. being the feaft of, &c. in that year, twenty-four pounds eighteen fhillings and five pence of the faid annuity of twenty pounds of lawful, &c. for one year and the half of another year ending on that day in the year last aforefaid, five pounds one fhilling and fevenpence, on account of the faid annuity, making together thirty pounds of the said annuity for and during the faid one year and the half of another year, having been paid and fatisfied to the faid J. M. and which fum of five pounds one fhilling and fevenpence the faid J. M. hereby acknowledges to have received of and from the faid James and Elizabeth his wife, in the faid one year and the half of another year, became due and payable from the faid James and Elizabeth his wife, as fuch pernors of the profits of the aforefaid deviled premifes, with the appurtenances, to him the faid plaintiff, and which faid fum of twenty-four pounds eighteen fhillings and fivepence ftill are in arrear and unpaid to him the faid plaintiff, to wit, at, &c.; whereby an action hath accrued to the faid plaintiff to demand and have of and from the faid James and Elizabeth his wife the faid fum of twenty-four pounds eighteen fhillings and fivepence of lawful money of Great Britain; yet, &c. &c. [Common conclufion in debt.] Drawn by MR. CROMPTON. SURRY, to wit. Robert Middleton complains of James Forth, being, &c. in a plea that he render to him the faid R. thirty-feven pounds ten fhillings of lawful, &c. which he the faid J. owes to and unjuftly detains from him; for that whereas before and at the time of making the faid indenture hereafter mentioned, one J. B. deceased, was felfed in his demefne as of fee of and in the feveral premifes thereby granted and conveyed, with the appurtenances, and being fo thereof feifed by a certain indenture made the, &c. between the faid John B. of the first part, one R. J. and Mary, one of the daughters of the faid R. J. of the fecond part, one W. S. and M. B. of the third part, and one J. M. of the fourth part (one part of which faid indenture, fealed with the refpective feals of the faid J. B. R. J. M. J. W. S. and J. M, the faid Robert now brings into court here, the date whereof is the day and year aforefaid); reciting that whereas a marriage was intended to be had and folemnized between the faid J. B. and M. J. he the faid J. B. in confideration of the faid intended marriage, and in confideration of other the premises in the faid indenture in that refpect mentioned, did grant, bargain, fell, alien, remife, confirm, and for ever quit claim unto the faid W. S. and M. B. all that meffuage, lands, &c. all which faid meffuage, lands, &c. lie together, or near together, and are fituate, lying, and being in the parish of, &c. and were then in the tenure or occupation of the faid J. B. his affigns, or undertenants, and abutting on, &c. &c. of land belonging to the faid J. B. and bounded out by pofts, &c. and then in the occupation of the faid J. B. or his affigns, and alfo four ponds in the occupation of the faid J. B. or his affigns, lying and being in the faid lands in the occupation of the faid J. B. and all outhoufes, &c. whatsoever to the faid meffuage or tenement, lands, &c. belonging or appertaining, and all the eftate, right, title, intereft, ufe, truft, inheritance, property, claim, and demand of him the faid J. B. his heirs, or affigns, of, in, or to the faid premifes, and all charters, deeds, evidences, and writings touching or concerning the faid premifes or any part thereof, to hold the faid mefluage, &c. with the appurtenances unto the faid W. S. and M. B. their heirs, and affigns for ever, to and for the feveral uses, intents, and purposes in the faid indenture hereinafter mentioned concerning the fame, that is to fay, to the use and behoof of the faid J. B. and his heirs, until the faid intended marriage should be had and folemnized, and from and after the solemnization of the faid intended marriage to the use and behoof of the faid J. B. and his affigns, for and during the term of his natural life without impeachment of wafte, and from and after his deceafe, in cafe the faid intended marriage fhould take effect, and the faid M. J. fhould furvive and out live the faid J. B. then to this intent and purpose, that it should and might be lawful to and for the faid M. J. the intended wife of the faid J. B. and her af figns, to have, receive, and take out of the rents, iffues, and profits of the faid meffuage or tenement, farm lands, and premifes, one annuity, yearly rent, or fum of fifty pounds of lawful, &c. clear of all deductions, taxes, or other payments whatfoever, for and during the term of her natural life, to be paid by quarterly payments, on the four moft ufual feafts or days of payment in the year, to wit, the feaft of, &c. by even and equal portions, the first payment to begin and be made on fuch of the faid feaft-days as fhould next happen after the decease of the faid J. B. and if it should happen that the faid annuity or yearly rent of fifty pounds or any part thereof should at any time be behind or unpaid by the fpace of ten days over on which as aforefaid the fame ought to be paid, then from time to time as often as the fame fhould be fo in arrear, it fhall and might be lawful to and for the faid M. J. and her affigns, into and upon the faid meffuage, lands, and premifes, or into any part or parcel thereof to enter and diftrain, and the diftrefs and diftreffes there found and made to impound and keep until the faid annuity or yearly rent, with all arrears, charges, and damages, fhould be lawfully paid and fatisfied, as by the faid indenture, reference being thereto had, will, amongst other things, more fully and at large appear: And the faid Robert in fact fays, that after the making of the faid indenture, the faid intended marriage between |