
    Devlin, Appellant, v. Burns et al.
    
      Refusal of judgment for want of sufficient affidavit of defence.
    
    The Supreme Court will not reverse an order discharging a rule for judgment for want of a sufficient affidavit of defence in an action on a promissory note -given for rent, where the defendant avers that the landlord failed to comply with a covenant in the lease by which he agreed to furnish steam to the defendant, and that the defendant was thereby damaged to an amount greater than the rent due.
    Argued Jan. 15, 1892.
    Appeal, No. 145, July T., 1891, by plaintiff, from an order of C. P. No. 4, Plrila. Co., March T., 1891, No. 658, discharging a rule of judgment for want of a sufficient affidavit of defence.
    Before Paxson, C. J., Ster-Rett, Green, Williams, McCollum, Mitchell and HeyDRICK, JJ.
    Assumpsit by John Devlin against Robert J. Burns, Lizzie Newbery and William T. Gailey, trading as R. J. Burns & Co. The defendants in their affidavit of defence averred that the plaintiff was not a bona fide holder of the note in suit for value before maturity, but that Hugh French was the sole owner thereof; that French was the defendant’s landlord, and that the note in suit had been given to him for rent; that by a covenant in the lease French had agreed to furnish to the defendants live steam for carrying on their business to the full extent of the working of their plant; that lessor had failed to perform his covenant, had constantly turned off steam, and that defendants were consequently unable to fulfill their contract ; that many pieces of goods had been spoiled for which defendants were liable, and they not only lost the price of their labor, but paid damages besides; that their losses in consequence of French’s failure to comply with his covenant had amounted to more than the note in suit.
    The court discharged a rule for judgment for want of a sufficient affidavit of defence. Plaintiff appealed.
    
      Error assigned was the order discharging the rule for judgment.
    
      J. W. Logue, for appellant.
    
      John A. Seanlan, for appellees, was not heard.
    January 15, 1892.
   Per Curiam,

Judgment affirmed.  