balch contra tucker January trial direct on a point not in issue a agreement  be make under hand and seal that Batch be to pay a S her debt be pound and she  be to dispose by her will any sum of money not exceed pound and a S be seize  of a estate for life to her and her heir of the rectory of Huish it be agree  that if she have a child the child shall have the rectory after her death but  if the child die the plaintiff Balch be to have the estate this agreement be  make in order to a marriage between the plaintiff and a S the marriage take  effect the child die a S make her will and thereby give pound in money legacy  and die the defendant her heir bring a ejectment for the rectory and recover  it by verdict as he must do there be no estate yet pass Balch exhibit his bill  set forth the agreement and pray execution pay the legacy and the debt the  defendant by answer positive deny the agreement case in chancery er p the  Cause go to proof and hear the plaintiff prove the agreement full the  defendant examine one witness to prove that the morning before the marriage a  S be trouble and weep and declare to he that the reason of it be that she will  not marry unless a write which she have make to her husband may case in  chancery be deliver to her again whereupon a write be deliver to he and he  deliver it to a S the husband say she shall have any thing so she will marry  he the marriage proceed the Cause come to be hear the court order a trial upon  this point only videlicet whether the agreement be wave a trial be have and  find for the defendant that the agreement be wave the plaintiff move for a new  trial and be deny and a order to dismiss the bill and now the plaintiff move  again for a new trial or that the Cause may be reheard I offer it to the court  that the direction for a trial at first be hard upon we the question only upon  bill and answer be agreement or not nothing in issue whether the agreement be  discharge for that be quite contrary to the issue and if the witness swear  ever so false he be not perjure add it be impossible for the plaintiff to  disprove the allegation of a defendant which the defendant never allege and it  seem a piece of artifice to make that a defence of which the court can never  give judgement when a thing be not allege the court must judge secundum  instigation let but by this way the force of a evidence proper for the court  shall be judge by the jury and not by the court for in this particular case if  the deed it self have be deliver up yet it be no discharge in law except it  have be cancel if it be grant that the very deed be that which she desire  which yet he do not prove for he videlicet the witness swear he can write nor  read nor tell what it be that be deliver yet it can amount to no more than  that she desire to have it in her power to destroy it which she never do for  it be prove the husband have it after her death and if the defendant be too  hard for we in the form of proceed come so late we have more of the strength  of the Cause on our part in point of substance the court say we come too late  and will do nothing in the motion note the court direct this trial not upon a  deed show but upon matter of fact