case warren against constat to a covenant to transfer stock c under a mutual  penalty qure whether nil debet be a good plea S c stram S c Mod error from the  common plea in debt for two thousand eight hundred pound on penalty contain in  article for the sale of twentyfive share in the Welsh copper company constat  covenant to transfer that stock warren covenant to accept and pay for it at  the time of the transfer and they mutual bind themselves in the penal sum the  defendant plead nil debet demurrer and show for cause that nil debet be not  pleadable reeves this be a good plea on action of debt for a penalty for  nonperformance of article the plaintiff must show the article and a breach in  action for a penalty though not so upon a bind or a penal bill therefore they  be very different a obligation with condition to perform article be also  different on the other side for there the defendant must set out the article  and show performance but where the article and bind be in the modern report  same deed the plaintiff must set they forth and show a breach then also nil  debet be not a plea on bind yet in this it be because the lie do not arise  mere upon the Obligatory part of the deed but on the matter in fact join with  it by bind the defendant be estopped to say it be not a debt prima fancy so  upon a to know facias or to a action of debt upon a judgement but must take  advantage by a defeasance which he must bring before the court here be no  estopped to this plea from the deed for the fact allege by the plaintiff to  entitle he to the action must be true the ancient and modern book go entire  upon this reason where matter of fact and of record be join together the  defendant need not plead nul tiel record but may plead nil debet Henry bro  issue join Henry b payment may be plead to debt for rend reserve on a lease  though not to a bill Obligatory without plead it with a acquittance Edward b  modern report er p Edward b nil debet be a good plea on a escape sand so in  debt for not set forth of tithe cro matter of record mix with matter of fact  be try per pais hob the plea be good on covenant for nonpayment of rend keb  debt against a administrator suggest a devastavit that debt must be on a  judgement the foundation of the action yet the devastavit be necessary nil  debet be hold to be a good plea Michaelmas term Ann v Andrews these be  authority in point darnel sergeant contra this plea be not in this case  pleadable the true difference when it be pleadable and when not be where the  action be whole find on matter contain in the deed or where it be find on  matter collateral and not arise from the deed so be nil debet for rend because  there be many thing arise out of the deed as entry and expulsion that may  extinguish the rend so in a action on a escape action of debt give by Act of  parliament be all give upon certain fact and nil debet be a good plea where  the matter be entire collateral and do not arise upon the deed it be a good  plea the case before the court be whole upon the deed and it be not material  if the obligation be before or after or mix with the condition every action on  a bind condition for payment be find upon fact whether the money be pay or not  but the difference be if those fact arise out of the deed itself as all the  fact in this case do or if they do not arise from the deed nil debet be not  good in a action upon a specialty sand salk hard Keilway b lev the plea be  allow to all action relate to the revenue to overseer of the poor and officer  in administration of justice the difficulty upon nil debet be very great on  the plaintiff for be must prove every article in the contract and the  defendant may give everything in evidence non compos or other that can be  think of in discharge and how can the plaintiff be prepare to reply it will be  considerable in matter of cost that he will be oblige to bring witness from  all modern report part one can on nil debet show that the plaintiff nil to  have in property but must plead it reeves in reply there be not authority to  support the difference which the sergeant have lie down where the deed contain  the fact and where it do not nor will it hold in the reason of the law for if  the fact be to be prove it be the same in reason whether they be in the deed  or not the deed can ascertain the fact to be perform that be matter in pais  nonpayment be not a matter of fact that be traversable or material for  although it be prove the defendant have pay the money yet the plaintiff shall  recover it can only be plead in performance of the condition which be a  defeasance of the deed the inconvenience be the same as in other case where  allow Raymond chief justice there be a infinite number of case where the  defendant have plead special to such contract and none where he have plead  general the court look time to advice of this case the judgement be affirm in  the thirteenth year of George the first a in Trinity term Geo Dennison cite  this case as determine for the plea which be allow by chief justice York and  strange and say by the chief justice that the settle rule for plead it be  where there be a matter of fact mix with the matter of record to which the  matter of record be inducement note to M S and see heart v Weston burr black a