case warren against Consett if a covenant to transfer stock and b covenant  under a penalty to accept the same a declaration in debt by a for the penalty  ought to show that he actual transfer the stock and that b refuse to accept it  for it be not enough to say that he be ready to transfer c S c pract Reg S c  bar king b a action of debt be bring by the plaintiff in the court of common  plea he declare upon a indenture by which he covenant to transfer twentyfive  share in the Welsh copper company and the defendant covenant that he will  receive and pay for the transfer c and bind himself in the penalty of two  thousand eight hundred pound to perform the same and for nonperformance  thereof this action modern report be bring the defendant plead nil debet to  which plea the plaintiff demurrer and have judgement in that court for the  insufficiency of the plea for that nil debet be a ill plea to this action a  writ of error be thereupon bring in the court of king bench it be argue that  this judgement be erroneous first a objection be make to the form of the  declaration videlicet that the plaintiff have not set forth that he have do  all thing necessary for he to do to entitle himself to this action for he  shall have allege that he tender to transfer the share on a certain day hour  and place and that the defendant refuse to accept they and be only show that  he be ready to transfer they debt is owed modus but do not say at what time or  place now where it be set forth as it ought to be at a certain time and place  and no person be there to receive it the party must show at what time of the  day he be at the place and how long he stay there though a refusal be show yet  it be not show to be at that time see mordant v small post and the case there  cite a second because nil debet be adjudge no good plea which be erroneous it  be certain a very good plea for wherever matter of fact be mingle with  specialty or with a record nil debet be a good plea as in debt before auditor  it be a good plea but on the other side it be argue to maintain this judgement  that nil debet be no good plea in this case and the chief reason be because of  the solemnity of a deed now here the debt arise mere upon the deed and not on  any collateral matter dehors in such case the defendant shall have deny the  deed and have plead some other deed to avoid it for if he once own the deed it  be then a good debt and therefore nil debet be no good plea to it beside it be  a plea which include several issue and for that reason it be ill it be no good  plea to a action of annuity nor to a action of debt on a bind bring by a  administrator it be true it be a good plea to a action of debt bring for rend  reserve upon a lease for year but the reason be because the demise be the  foundation of the action and the deed be only a evidence of the demise and so  it be a good plea to a action of debt bring on penal statute and to action of  debt bring upon award or to account before auditor and the reason be because  these be not the deed of the party but here the deed of the party himself be  the very lie and not anything in pais and the gist of the action be for  payment of money modern report it be no good plea to a action on a policy of  insurance nor to a action on a bailbond though there be something dehors to be  do to charge the insurer and the bail the court be divide in opinion but seem  inclinable to reverse the judgement this case be first argue in Hilary term  Geo stram it be argue a three time in mich term Geo post and in easter term  Geo the judgement of the common plea be unanimous affirm for that the action  be find on the article and the particular fact be only auxiliary to the deed  the plea of nil debet be no good plea S c post S c stram for if in such case  this plea be allow it will refer the validity of the deed to the consideration  of the jury S c ld ray so in debt on bind the plea of nil debet be bad on a  general demurrer synonymous will S p bull n p S p heart v Weston burr S c Bl  Rep S p mill v bind fort Mayhew v Mayhew fort but it be say that nil debet to  a action of debt on bind be good after verdict will and be a good plea to debt  on a contract Com dig pleader W or where the specialty be only inducement to  the action and the matter of fact be the foundation of it ld ray Wilson case  Hardres b modern report er p