
    Brotherton against Haslet for the use of Radebaugh.
    
      October.
    
    In an action on a bond entered into by the defendant as surety, the defendant cannot give in evidence as a set-off that land which prior to the date of the bond the plaintiff bad agreed to sell to him, had been levied on by an execution issued upon a judgment obtained against the plaintiff by one of the plaintiff’s creditors subsequently to such agreement to sell.
    Where a husband agrees to convey land but does not covenant that his wife shall join in the conveyance, her declarations, that she never would execute a deed for the land, are not admissible in evidence, in a suit upon a bond given to the Husband in consideration of the sale of such land.
    In Error.
    BY the writ of error to the Court of Common Pleas of Franklin county, in this case it appeared, that the suit was brought in the name of Robert Haslet, for the use of his ass*Snee» Samuel Radebaugh, on a single bill for ¡8 900, dated 3d February, 1814, payable the 1st March, i8l6, given by John Truxal, and John Brotherton, his security, to the said Robert Haslet. It was admitted that this bill was given in part payment, for a tract of land, sold by Robert Haslet to John Truxal, which had been before sold and conveyed by John Brotherton to Robert Haslet. The writ was issued 8g'-nr:sf Jo tin Truxal and John Brotherton; but John Truxal p.<h ci-A'iny keen taken, the suit proceeded against JohnBrotkencn aljiift, The defendant gave in evidence, a written between himself and Robert Haslet, dated the October, 1808, by which he agreed to convey to Robert Haslet, by a good title on the 1st April, 1809, a certain tract of land, particularly described (being the same tract which Robert Haslet afterwards sold and conveyed to John Truxal, as before mentioned,) and also to pay him the sum of g 4800, viz. g 800, on the 1st April, 1809, and g 320, yearly, until the whole sum of g 4800, should be paid; and in consideration thereof, Robert Haslet, agreed to convey to John Brotherton, by a deed of patent right, (these were the expressions,) a certain tract of land, particularly described, on the 1st April, 1809. The defendant also gave in evidence, that in the year 1807, Robert Haslet had purchased the land which he was to convey to John Brotherton, of Thomas and James Wallace, for the sum of 16651. 5s. 7d. of which, 300/. were payable the 1st April, 1809, and the residue by instalments of 100/, annually, for which he passed his bonds, secured by a mortgage of the premises. The defendant also gave evidence, that he had paid several sums of money to Robert Haslet, and also paid several of the bonds given by Robert Haslet to Wallace; and that he had conveyed to Robert Haslet, the tract of land which he had agreed to convey, on the 1st April, 1809. The defendant then offered to give in evidence, a judgment entered on the 17th July, 1810, on one of the bonds given by Robert Haslet to Wallace as aforesaid, and an execution issued on the said judgment, and levied on the land, which Robert Haslet had agreed to con-vey to the defendant. To this evidence, the plaintiff objected, and the Court of Common Pleas rejected it, and sealed a bill of exceptions.
    The defendant also offered evidence, to shew, that Robert Haslet’s wife had declared, she never would execute a deed for the land which her husband had agreed to convey to the defendant. But the Court rejected the evidence, and sealed another bill of exceptions.
    
      Brown and Carotkers, for the plaintiff in error,
    on the first bill of exceptions, admitted that damages arising from a tort, could not be set-off; but contended, that under the equitable power of the Court, or as a set-off, damages which admit of liquidation, may be set-off. And though the land had not been sold, but only levied on, this amounts to a damnification to the amount of the execution. In Murray v. Williamson,
      
       it is decided by this Court, that a debt, of which the defendant is equitable owner may be set-off: and the' Chief Justice says, that e« the cause is much stronger in this Court, than in the English courts of common law : because here an equitable defence is pleadable.” Our defalcation act is more extensive in its language, than the British statutes of set-off. 3 Yeates, 9 : and in Boyd v. Thompson,
      
       it was held, that a sum in the nature of stipulated damages for breach of agreement, may be set-off. They further cited, 1 Atk. 230. 3 Yeates, 327. 2 Bay. 475.
    2. The second bill of exception, depends on the same principles as the first.
    MiCullough, contra.
    By an equitable defence, in Pennsylvania, is meant, such a defence as might be a ground of relief in a court of equity. The defendant had no such defence. He could make no claim on Robert Haslet, until he paid the money. There is no remedy for the purchaser while he is in possession, and has not been evicted at law. 1 Johns. Ch. Rep. 218. One who sues for damages against a person bound to remove incumbrances, can only recover nominal damages, unless he has paid the incumbrances. Princet v. Truman. If this set-off had been allowed, and then Robert Haslet had been sued by Wallace, he could not have taken advantage of it as a defence. The judgment was not a lien on the land sold by Robert Haslet to John Truxal: it was not entered till after the sale. Besides, it is doubtful whether any thing can be set-off against an assignee, which does not arise out of the original transaction. Add. Rep. 323.
    
      
       3 Binn.135.
      
    
    
      
       2 Yeates, 217.
    
   The opinion of the Court was delivered by

Tilghman C. J.

The defendant contends, that in equity, the plaintiff ought not to recover on this bond, while he negleets to make him a good title for the land which has been levied on by Wallace, through his default: and that the judgment and execution were good evidence to shew the m-jury he has sustained. But there are great difficulties in the way of this defence. The bond on which this suit is brought, is unconnected with the agreement between the plaintiff and defendant. The defendant has involved himself in this trouble by becoming security for John Truxal, who purchased of the plaintiff. It is not a question, whether the defendant shall be compelled to pay for the land which he purchased of the defendant, while the plaintiff refuses to make him a title. That would have been a strong defence. But the defendant wishes to set-off, against the bond in which he became security for yohn Truxal, certain damages which he supposes he has sustained in another transaction. Now even if such damages could be matter of set-off, it does not appear that the judgment and execution are available evidence, because the defendant has paid nothing on account of the judgment; nor has the land been sold by virtue of the execution, nor can it lawfully be sold, because it was not the property of the plaintiff, at the time of issuing the execution, or at the time of rendering the judgment, having been sold by the plaintiff to the defendant, before the judgment. The judgment therefore, was no lien upon the land. Suppose now, that the defendant should be allowed the benefit of a set-off in this suit, to the amount of Wallace’s judgment against the plaintiff, and afterwards Wallace, finding that the land was not bound, should issue an execution against the personal property of the plaintiff, or against his body; could the plaintiff in such case, plead, that he had paid the judgment by a discount allowed to the defendant in this suit ? Certainly not. Then he would have to pay Wallace’s debt twice; which shews the impropriety of suffering the defendant to give in evidence, a judgment and execution by which he has not sustained any damages. I am therefore of opinion, that the evidence was properly rejected.

There is another bill of exceptions in this cause. The defendant offered to prove, that Robert Haslet’s wife, had declared she never would, execute a deed for the land which her husband had agreed to convey to the defendant. This evidence was rejected by the Court, and rightly. Her declaration was immaterial. It does not appear by the agreement, that her husband had covenanted that she should join in the deed. And as for damage, there was not the least reason to suppose, that any damage had been sustained by her declaration. She might change her mind afterwards, and sign the deed; or, she might die before her husband, and then her right of dower would be extinct. Her declaration, then, could in no point of view avail the defendant as a defence against the bond on which this suit was brought. I am therefore of opinion, that there is no error in this record, and the judgment should be affirmed.

Judgment affirmed.  