DEBT on a bond. Plea, payment, with leave c. and issue. The counsel for the defendants had given notice, agreeably to the 39th rule of practice, that evidence to the following effect would be offered on the trial of the cause, to wit; That the bond was given for payment of the consideration money of a tract of land and mill, which the plaintiffs had sold to the defendants, reserving in the deed a right to swell and raise the water, so as not to injure the mill; but that the plaintiffs had raised the water, so as to injure the mill.
BY THE COURT: — The question is, whether, under the liberality of the practice of our Courts of Justice, such evidence is admissible? To decide in the affirmative, the case must either be embraced by the general provision of the act for defalcation ( 1 Vol. Dall. Edit. p. 65. ) or by the 39th Rule of the Supreme Court. Now, although our act of Assembly extends further than the British statutes of set-off (2 Geo. 2. c. 22. and 8 Geo. 2. c. 24) we do not think it comprehends a defalcation of the nature contended for: And, though the 39th Rule of the Court ascertains what evidence is admissible on the plea of payment, it contains nothing descriptive of the present circumstances, where there was a good consideration for the bond, though the defendants have been injured by the subsequent conduct of the plaintiffs.
If, however, the defendants would otherwise be without a remedy, we should be solicitous, by any rational construction of the law, to admit the evidence: But, it is clear, that they may have an adequate redress for the wrong which they have suffered, in a form of action suited to their case.
YEATES, Justice, added, that in the case of Sweetzer v. Garber tried at Nisi Prius, in Cumberland County, when he was Counsel for one of the parties, a similar principle was decided. The Vendor had interrupted the Vendee in the enjoyment of the tract of land, which had been sold; but the latter was not allowed to give the matter in evidence, in an action brought by the former, to recover the purchase money.
The evidence was rejected; and a verdict given for the amount of the plaintiff's demand.