delivered the opinion of the court,
We do not find any serious error in either of the first six specifications. The seventh refers to the refusal of the learned judge to answer the points submitted to him by the counsel of the plaintiff. We think such refusal was error. The sixth and seventh points were not answered in the general charge, and should have been affirmed. A party who applies for it is entitled to a clear and distinct instruction on the rule of law applicable to his case, and it is error to withhold it: Slaymaker v. St. John, 5 Watts 27.
The remaining assignments allege error in the charge of the court. In the portion of the charge contained in the eighth specification the learned judge assumed, that there was the suppression of a material fact, and instructed the jury that said suj^pression entitled the defendant to a set-off in dollars and cents the injury caused to his lot by the opening of-Baring street. This virtually withdrew the question of fact from the jury. It may be that the court was right in its view of the facts; but they are not incapable of another and very different interpretation. The plaintiff had purchased the lot in question at a master’s sale. Public notice was given at said sale that Baring street had been laid out over this lot, and that the purchaser would be entitled to the damages. The defendant was at the master’s sale and bid against the plaintiff for said lot. In addition, the defendant lived within two hundred and fifty feet of Baring street. The only knowledge the plaintiff appears to have had upon this subject, was what occurred at the master’s sale, at which, as before stated, the defendant -was also present. He may very well have assumed .that the defendant *397knew Baring street had been laid out over the lot, and the price may have been fixed at what the plaintiff regarded as its value, subject to such an encumbrance. In such case there is no conclusive presumption that there was either' the suppressio veri, or the suggestio falsi. It more nearly resembles the case of a mutual mistake, where equity relieves, not by allowing the party to keep both the property and the price, but by rescinding the contract and by restoring the parties to their former position. In this case the plaintiff offered to take the property back and restore the money paid with interest. The defendant declined this offer He may or may not have a defence to this suit, as the jury may find the facts in regard to the alleged suppression by the plaintiff of the fact that Baring street had been opened over the lot. This fact should have been submitted to the jury, instead of being assumed by the court.
The portions of the charge referred to in the ninth and tenth assignments of error were clearly erroneous. It has been repeatedly held that damages for the opening of roads and streets are a personal claim; they are assessed in favor of the owner at the time of the injury, and do not run with the land : McFadden v. Johnson, 22 P. F. Smith 335. The defendant has not, in any aspect of the case, a claim to the' damages qua damages, and could not sot them off in this suit. If evidence for any purpose, it could only have been as to the measure of damages sustained by defendant by reason of the opening of Baring street. Even upon this question they were not conclusive.
Judgment reversed, and a venire faeias de novo awarded.