
    Jacob Kachlein and Peter Ihrie against James Ralston and John Mulhollan.
    S. C. 2 Dall. 237.
    Unliquidated damages in covenant sounding in tort, cannot be defaulted • under the plea of payment, in a suit on a bond.
    Debt on obligation, conditioned for the payment of 500I. on the 27th May 1795. Plea payment, with leave to give the special matter in evidence.
    On the 19th January 1793, the plaintiffs, by a certain article of agreement, covenanted to convey to Ralston, one of the defendants, a grist mill and three tracts of land near Easton, with all the privileges thereto belonging, reserving to themselves the right of swelling or damming the water on a tract below, called the Pulling Mill Tract, provided the water should not be raised so high as to injure the mill intended tc be conveyed. On the * 12th April 1793, the plaintiffs r*ecro executed a conveyance in pursuance of the article, and L the defendants gave bonds for the residue of the purchase money, which was all paid except 750I.
    The defendants, under their plea, offered to shew in evidence, that the plaintiffs had erected a dam below, which had much injured the mill conveyed; and that a suit had been brought against the defendants by one Waggoner, for raising their dam, but at length on the argument, they relinquished the latter part of their motion.
    Exception was taken to this testimony by the plaintiffs. The damages supposed to have been sustained are the object of a new suit, and cannot be,considered as a set-off under the English statute, or our own act of assembly. The reason of the statute applies to mutual debts only. Cowp. 57. Un-liquidated damages on a former sale of goods cannot be set off. 1 Bl. Rep. 394. So of damages in covenant. Cowp. 56. One tort cannot be set-off against another. 4 Term Rep. 74. There is no set-off to an avowry for rent. Ib. 511. There are three kinds of covenants. 1. Mutual and independent. 2. Covenants which are conditions and dependent. 3. Where mutual covenants are to be performed at one time. Doug. 665. Mutual covenants unperformed on one part, are no excuse to the other. 1 Rol. Abr. 416. One covenant is not pleadable in bar of another covenant. 4 Bac. Ab. 116. 3 Eev. 4. The bond is transitory, and if the action was brought in another county, and the evidence be ruled to be admissible, the plaintiffs would lose the benefit of a view, which is of the utmost importance in cases of this nature.
    The defendants answered; the rules of law and pleading are said to be founded on sound sense, and to subserve the purposes of substantial justice. Why should the defendants pay now, and be afterwards put to another suit to recover damages for the violation of the contract? Covenant will clearly lie in such a case. It will lie wherever the intent of the parties plainly appears. 1 Cha. Ca. 294. 6 Vin. 381, pi. 21. Any thing under the hand and seal of the parties will make a covenant. 2 Mod. 91. 6 Vin. 381, pi. 22. Absque impetitione, abnegatione, &c. in a deed, if grantee, does not enjoy, will support covenant, r Eeon. 277, pi. 375.' 6 Vin. 379, pi. 12. 3 Com. Dig. 559. On a demise reddendo rent, covenant lies on non-payment. 6 Vin. 379. 2 Com. Dig. 560. Covenant lies, if one party does a matter which impedes the other in the enjoyment of his property. 1 Saund. 323. If lessee agrees that lessor shall have two rooms of a house, and a lease be of the house, except the two rooms and *free passage to them, if lessor be disturbed in his ,-*-70 passage by lessee, covenant lies against him, 1 Salk, 196. 2 Com. Dig. 559. If one covenants to stand seized to the nse of his son, saving that his wife shall have the lop-pings of the trees, if the son cuts down the trees, covenant lies against him. Cro. Car. 437. 2 Com. Dig. 559. If it be agreed that A shall pay iol. to B for his goods, this amounts to a covenant by B to deliver his goods, because agreed is the word of both.- 1 Saund. 322. 1 Sid. 423. T. Raym. 183. 2 Com. Dig. 559.
    There was much absurdity in the law, before the statute* of set-off was enacted. Our defalcation act, 4 Annse, in 1705, reaches much further. The act of 3 Geo. 2, in 1729, § to, pa. 165, is almost copied verbatim from the English statute of the preceding year. Under the former act, “any bond, “bill, receipt, account or bargain,” may be given in evidence, and if it appear that the plaintiff is overpaid, the jury shall certify how much the plaintiff is indebted, and the debt shall become a debt of record. If the defendants therefore can shew any matter which would form a good defence ex csquo et bono, it ought to avail them. The want of a court of equity amongst us has more strongly induced this liberality of practice. Want of consideration or mistake may be given in evidence to defeat a bond, Dali. 17; and the jury may presume any thing to be paid, which of right ought not to be paid. Ib. 260. The obligations in the contract are mutual and dependent; the whole shall be construed as one agreement. Pow. on Cont. 410. Here the defendants have been obstructed in the full enjoyment of the mill and privileges conveyed to them, and so far as the}' have sustained damages by this breach of contract, the consideration of the bond has failed, and they ought to receive compensation therefor. The plaintiffs have received full notice of this part of the defence, and no injury can result to them from going into the inquiry in the present suit.
   By the court.

The question before us is not whether the defendants may sustain a suit against the plaintiffs for the supposed injury done to them in swelling the water below; but whether the testimony offered is sustainable in the present action? That part of the defence which was grounded on the suit brought by Waggoner seems to be abandoned.

The motion of the defendants can only be supported under the defalcation act, or the liberality of the practice of the courts of this state, under the general issue of payment. The act of 1705 could never have intended that damages under *5741 a covenanb sounding merely in tort, could be de-J faulked. Other kinds of “bargains,” as for payment of money, &c. must have been within the intention of the legislature. At the same time, we think that our defalcation act of 4 Ann. has much more extensive words than the British statute; there may be clearly cases of set-off amongst us, for which indebitatus assumpsit would not lie, according to the resolutions in England. Cowp. 57. But this ground has not been much relied on by the counsel.

Cited and followed in 1 S. & R., 479; 4 S. & R., 250; 5 S. & R., 122; 10 S. & R., 15 ; 8 Watts, 445 ; 3 W. & S., 332 ; 17 Pa., 52.

Messrs. Thomas and T. Ross, pro quer.

Messrs. Ingersoll, Sitgreaves and J. Ross, pro def.

It remains then to be considered, whether the evidence can be warranted by the practice of courts. It is not within the words or meaning of the 39th rule, regulating the practice of the Supreme Court, nor do we recollect any case that has ever gone so far as is now attempted. The consequence of our admitting such evidence, would be the blending of the most discordant subjects; matters arising ex contractu and ex de-licto, and therefore we think that the evidence cannot be received; but if the counsel should think that we are mistaken, application may be made to the court in bank.

And per Yeates, J. In the case of Erederick Sweitzer v. John Garber in Cumberland, May assizes 1788, I was of counsel with the defendant. The action was brought on a bond, the consideration of lands sold by the plaintiff to the defendant. We offered to shew under the general issue, that the defendant was interrupted in the possession by one Mohler, to whom the premises had been demised by the plaintiff; but the chief justice overruled the evidence. That case was analogous to the present.

The jury found accordingly. 
      
      Stat. 2 Geo. 2, c. 22, made perpetual by 8 Geo. 2, c. 24, and the set-off is thereby extended to debts of a different nature,
     