1816. HASTINGS v. WILSON. In the absence of evidence to the contrary, I must presume that contract of sale to be now in force. The contract of sale fixes them with possession, and they must shew why they did not enforce the sale. The plaintiffs had a verdict. Best, serjeant, and Parke, for the plaintiffs. Vaughan, serjeant, for the defendants. SITTINGS AFTER TRINITY TERM, AT GUILDHALL. 1816. TH BELL v. SHAW. July 10, Where to debt on bond, HIS was an action of debt brought upon two tiff; one for 8001, the other for 300. There pleaded, that had been long and intricate accounts between the parties, and the plaintiff claimed a sum of money due to him for interest upon the two bonds. a The defendant pleaded non est factum, and set-off; in which he admitted 1,100l. to be due to the plaintiff, and no more; of which sum of 1,100l. he undertook to discharge himself by his set-off. The plaintiff replied generally, that more than 1,100l. was due; to wit, the sum of 1750. Vaughan, serjeant, for the defendant, contended, that it was incumbent on the plaintiff, by the issue which he had taken, to prove that more than 1,100l. was due from the defendant. Best, serjeant, contrà. GIBBS, C. J.-If the defendant plead a set-off to 1,100l. was due, and no dertook to discharge himself therefrom by a set-off, and the plaintiff more, and un replied, gene rally, that a larger sum was due, to wit, the sum of 1,750! : : Held, that the plaintiff was bound to prove that more than 1,150%. was due. 1816. BELL v. SHAW. debt upon bond, he is bound to state the precise sum due upon the bond, before he can set off any cross demand. He has admitted that 1,100l., the amount of the two bonds, is due, and he undertakes to discharge himself of that sum by his set-off: the issue which the plaintiff has taken is, that more than 1,100l. was due; viz. the sum of 1750l.; but that is pleaded under a scilicet. I am of opinion, therefore, that the plaintiff must prove that more than 1,100l. was due. The defendant's counsel then proved a set-off, to the amount of 1,100., and the plaintiff was nonsuited. Best and Copley, serjeants, and Marshall, for the plaintiff. Vaughan, serjeant, and Comyn, for the defend ant. Vide Symonds v. Knox, 3 ritt, 4 T. R. 460. T. R. 65. Grimwood v. Bar SITTINGS AFTER TRINITY TERM, 56 GEO. III. 1816. DoE, on demise of METCALF, v. BROWN and Others. Tagainst It July 11. sideration of a A., in concertain sum of money, conveys premises to B.; and, at an agreement that A. shall fifteen months, at a consider able advance upon the origi nal purchase money; and B. the agrees to sell HIS was an action of ejectment, brought against the defendants, who were the assignees of Wilson, a bankrupt. A person of the name of Emmins, being possessed of a term the same time, in some land set apart for building, is entered into of years, assigned a portion of his term to Robert Metcalf, between them, by whom it was sold to the bankrupt Wilson. re-purchase Wilson built several carcases of houses on the the same preground, and began others; when, wanting money complete the buildings, he applied to an auctioneer, of the name of Bromley, for a loan of 800l. was agreed, that Bromley was to have 80l. for advance of the 800l. for six months; and, in order to be secure in the loan, a regular conveyance, by deed, was drawn up, by which Wilson transferred the interest in the land and houses to Bromley, for the consideration mentioned in the deed. And in case the money was not repaid in six months, Bromley was to sell the houses, and to repay himself the money advanced, and the 80%. premium, out of the proceeds. The 80l. was not to include his commission on the sale; and he was to put up the premises to auction for that sum. This con and re-convey at such ad vance: Held, that, in point of law, such contract was not usurious, meant as a unless it were cover for a loan of money, which was a facts for the question of Jury. 1816. DOE veyance which appeared, on the face of it, a common transaction of bargain and sale, was dated the 15th of April, 1811. Notwithstanding this conveyance, Wilson remained in possession of the and Others. premises, and carried on the buildings; but after v. BROWN wards, wanting more money, he applied to Metcalf, from whom the ground had originally been taken, to advance him 1,2001. He mentioned the conveyance to Bromley; and Metcalf agreed to pay the 8801. to Bromley, and to take an assigment from him. Bromley, upon a remonstrance, remitted 331. from the 80l. for which he had stipulated, and a regular assignment was made of the premises, from Bromley to Metcalf, in June, 1811. Metcalf, who paid Bromley 845l., and made up the difference to Wilson between that sum and the 1,2001. The purchase-deed, and all the expences of the conveyance, were paid for in both instance's by Wilson. At the time of the latter conveyance, an agreement was entered into between Wilson and Metcalf, that Wilson should have the liberty of re-purchasing the premises for the sum of 1,400l. provided the purchase was made before September, 1812. This agreement, which was by an independent instrument, contained an express covenant on the part of Wilson to re-purchase for that sum by the day mentioned, and Metcalf covenanted on his part to sell. Wilson continued in possession till he became a bankrupt, when his assignees entered upon the premises, and the present action was brought to dispossess them. Lens, serjeant, and Marryatt, for the defendants, contended-1. That. this was an usurious |