Page:United States Reports, Volume 2.djvu/244

 838 Casas ruled and adjudged in the I795. ably to the 39th rule of praétice, that evidence to the following BMG eE'e£|:would be oferedonthe trial ofthecaufe,towit; 'Ihatthe bondyas given forpgylmeutoftheconlideration moneyofatraét of land audmill, wh' the plaintifs had fold to thedefendants, rcferving in the deed a rightto {well and raifc the water, fo a: not toinjure the mill; but that  the wad _ mer, foanoinjurethemilh The couufel for theiplaintiifs {kggand Ylonoejobjeéied eo the evidence, on theground, that injury, if it had really happened, was inthe nature of a tort, for which .the damages were not afcertaiued, and could not be {et ol? in an action up- on the bond. 1 Bl. Rep- 394- Coup. 5. 6. 4 TZ Rep. 74. 5rr. Doug. 665. 4 Bo:. dor. 116. The defendants’ counfel (lngerjéll and Sitgruues) liated, that the evidence was not meant to operate, ilriétly, as a {et-oi, but as auequitabie defence; The conlideratiou of the bond had, in a great degree, failed by the a& of the plaintiili ;_ and, asthe coulideradon might he cuquired into, any thing is admit`- 7 lible incvidencc onthe plea of payment, which bends eo lhew, that the plaintiilh, ex equoet bono, ought not to recover. t Doi!. Rqo. 17. 260. B`eiides, the refcrvation in the deed is in nature of o covenant, and wherever the intent of the parties appears under hand and feal, an aftion of covenant lies. r Cha. Cu. 294. 6. Wn. Ab-. 381. pL ar. 22. 2 Mod. 9r. r Leon. 277. pl. 1. E. 375. 6 Wn. Abr. 379. pl. 12. 2 Cm. _ _Dg. 559. 560. r Sound. 322. 1 Salk. 196, Cro. Cor, 437; ·r Sid. 423. SI2 Roym. s83. Br me Comvr :—The quellion is, whether, under theli- berality of the praétice of our Courts of juliice, fuch evidence is adrniilible ? To decide in the allirmative, the cafe mult ei- ther he enthracedhly the general provilion of the aéi for defal· cation (r Vol. D . Edit. p. 65.) or by the 39th Rule of the Supreme Court. Now, although our a& of Ailembly extends further than the Brirylv itatutes offd- (2 Geo. 2. ¢·. 22. and - 8 Geo. 2. c. 24) we do not think it comprehcnds a defalca-t tion of the nature contended for : And, though the 39th Rule of the Court afcertains what evidence is admillible on the plea of payment, it contains nothing defcriptive of the prefenz cir- cumiiunces, where there was a good conlidcration for the bond, though the defendants have been injured by the fubfcquent con. duét of the plaintills. - If, however, the defendants would otherwife be without a I remedy, we {hould he folicitous, by any rational conliruéiiondof _. ie

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