The object of the 39th rule of the Supreme Court, (which is pursued by the 29th rule of this court,) was calculated to prevent surprise at the trial, on the general plea of payment. These specifications under the rule, we know to be sometimes very general. But wherever the plaintiff requires *the defendant to go into the particulars of his defence, as pg to wantof consideration, fraud, falsehood, or a suppression [*8 of the truth, he is bound to do it, otherwise the spirit of the rule is eluded. In general cases between obligor and obligee, the same detail may not be necessary as on specialties assigned, where the assignee is a stranger to the original transactions. Under the present circumstances, we cannot direct the deposition to be now read, because from the papers shown to the plaintiff’s attorney, he could not collect the defence meant to be set up. If he had not been absent in Philadelphia, the deposition of Harris might have been shown to him for his information.
To prevent injustice in this case, we have adopted this expedient. Let the plaintiff’s attorney examine the deposition, and see whether by gaining time, he can probably repel the adverse titles ; if he thinks that he can, we will either adjourn the trial or discharge the jury, at his election ; but should he be of a different opinion, it can answer no purpose to postpone the hearing.
It was hereupon agreed that the special matters should be laid before the jury, and the cause to proceed.
On the evidence being gone through, it was admitted, that the contract as to the larger-tract should be rescinded; and it was then urged by the defendants that this should be extended to the smaller tract, lying about 12 miles distance from the for*8mer, the conveyances being executed on the same day, and one bond given for both.
Sed per cur.The onus probandi lies on the defendants, to shew some circumstances inducing a reasonable presumption that Born would not have bought the smaller tract, unless the larger could also be procured, such as, that the 407 acres were dependent on the 146! acres for wood, water, &c. The distance between them precludes this idea. The contracts for each tract are distinct, and nothing is shewn to impeach the title to the 146I- acres.
It was at length agreed that a verdict should be given for the plaintiff for 62I. 14s., after deducting 50 dollars indorsed on the bond paid, and that Born should release his right to the plaintiff for the tract containing 407 acres.