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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
The plaintiffs had a verdict.
Best, serjeant, and Parke, for the plaintiffs.
Vaughan, serjeant, for the defendants,
SITTINGS AFTER TRINITY TERM, AT
· BELL v. Shaw.
INHIS was an action of debt brought upon two Where to I
debt op bond, bonds, given by defendant to the plain- the defendant tiff ; one for 8001, the other for 3001. There pleaded, that
1,1001. was had been long and intricate accounts between the due, and no
more, and un. parties, and the plaintiff claimed a sum of money dertook to dis.
charge himself due to him for interest upon the two bonds. there from by
a set-off, and
the plaintiff The defendant pleaded non est factum, and a replied, gene.
rally, that a set-off; in which he admitted 1,1001. to be due to larger sum was
due, to wit, the plaintiff, and no more ; of which sum of 1,1001. the sum of
1,750! : Held, he undertook to discharge himself by his set-off. that the plain
tiff was bound The plaintiff replied generally, that more than
to prove that 1,1001. was due; to wit, the sum of 17501.
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' 1,1001. was due from the defendant.
Best, serjeant, contrà.
GIBBS, C. J.-If the defendant plead a set-off to
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 1,1001., 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 1,1001. was due; viz. the sum of 17501.; but that is pleaded under a scilicet. I am of opinion, therefore, that the plaintiff must prove that more than 1, 1001. was due.
The defendant's counsel then proved a set-off, to the amount of 1,1001., and the plaintiff was nonsuited.
Best and Copley, serjeants, and Marshall, for the plaintiff.
Vaughan, serjeant, and Comyn, for the defendant.
Vide Symonds v. Knox, 3 ritt, 4 T. R. 460.
SITTINGS AFTER TRINITY TERM, 56 GEO. III.
Doe, on demise of Metcalf, v. Brown and Others.
vu, wan6 muu
THIS was an action of ejectment, brought 4., in con
sideration of against the defendants, who were the as- a certain sum
of money, con-signees of Wilson, a bankrupt. A person of the name of Emmins, being possessed of a term
to B.; and, at
the same time, of years, in some land set apart for building, an agreement
""80 is entered into assigned a portion of his term to Robert Metcalf, between them,
that A. shall by whom it was sold to the bankrupt Wilson. re-purchase Wilson built several carcases of houses on the mises, within
the same preground, and began others; when, wanting money to
fifteen months, complete the buildings, he applied to an auctioneer, able advance,
? upon the origiof the name of Bromley, for a loan of 8001. It nal purchase
money; and B. was agreed, that Bromley was to have 801. for the agrees to sell
and re-convey advance of the 8001. for six months; and, in order
at such ad to be secure in the loan, a regular conveyance, by
that, in point deed, was drawn up, by which Wilson transferred of law, such
contract was the interest in the land and houses to Bromley, not usurious,
unless it were for the consideration mentioned in the deed. And meant as a
cover for a in case the money was not repaid in six months, loan Bromley was to sell the houses, and to repay him
question of self the money advanced, and the 801. premium, facts for the out of the proceeds. The 801. was not to include his commission on the sale ; and he was to put up the premises to auction for that sum. This con
ney, which was a
1816. veyance which appeared, on the face of it, a com
mon transaction of bargain and sale, was dated DOE
the 15th of April, 1811. Notwithstanding this . BROWN conveyance, Wilson remained in possession of the and Others.
premises, and carried on the buildings; but after.' 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 instances 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 1,4001. 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 tlie present action was brought to dispossess them. ; .
Lens, serjeant, and Marryatt, for the defendants, contended-1. That this was an usurious