
    David Cowan against William M‘Cullough.
    • In a bond, con^’™ed the issue is on non at fm-um, yet the special “?eT“toymdér Myactof A9,UB
    This was an action of deht commenced on a bond, in the penalty of 360 dollars, with a condition to make good and sufficient titles in law to a ° certain plantation, or tract of land, containing 180 acres, on or before the 1st December, 1808. The defendant pleaded a general issue of non est factum. The plaintiff proved the bond, and that the value of the land was 179 dollars 25 cents, and that he had paid only a part of the consideration money for the land, but how much he knew not.
    The defendant then stated to the Court, that he could prove that, directly after the commencement of the action, he tendered to the plaintiff a title deed for the land, which he refused to accept. He also offered to prove that the plaintiff had not paid for the land, for he had been obliged to sue him to recover the amount, which he (the plaintiff) was to have paid him, the defendant, for the land. It was the opinion of the Court below, on the trial, that the defendant was precluded from going into any evidence but that which was applicable to his plea of its not being his deed: and such was the old law, where the party could set up no matter extraneous to his plea.
   The opinion of the Court was delivered by

Mr. Justice Grim^m.

But it seems the better opinion, that under our act of Assembly, (1 Faust, 213,) that in cases of this kind, to prevent unnecessary suits in equity, where bonds are given, conditioned for the performance of covenants, or for the delivery of property, or for things other than the payment of money, that the plaintiff may, in all’such cases, before he takes out execution, (and the defendant may by rule of Court compel him thereto,) submit the condition of such bonds, and the special circumstances, to a Jury, in like manner as on a writ of inquiry; which Jury may assess and fix the debt or damages actually due. Upon this act it is thought reasonable that the defendant should also be let in with such proof of special circumstances as he may have in his power to prove; and I am disposed to relinquish the opinion I formed on the trial, as to the inadmissibility of such testimony, and therefore am of opinion that the motion should be granted.

Bay, Mott, Colcoch, Johnson, Cheves, and Gantt, J. concurred.  