The plaintiff has established the allegations in her declaration, requisite to sustain the action of covenant broken. The only objection to a judgment in her favor is that which arises from the fact, shown by the defendant, that he holds similar covenants made by the plaintiff, and attached to a conveyance to the defendant’s intestate, by the plaintiff, in a mortgage of the same premises which are the subject of the defendant’s covenant.
It is then said that the defendant having a precisely similar demand against the plaintiff, which he will be entitled to recover, it should operate as a rebutter to the demand of the plaintiff, to avoid circuity of action. The principle of rebutter is one well known in law, and is to be applied in all proper cases. The present does not seem to us to be one to which it is applicable. It might do injustice to the plaintiff, if her covenants could thus be set off and bar a recovery. The defendant holds the plaintiff’s notes of hand secured by her mortgage. Various cases might be readily supposed, where such a defence ought not to prevail; as in cases of large payments advanced towards the purchase money, and a mortgage to secure only a small residue, and that, by the terms of the contract, to be paid at some remote future day. There is no necessity for permitting this defence, with a view of protecting the rights of the defendant in reference to his counter demands. The entry of judgment máy be postponed, if the case requires it, to await a set-off, after the defendant shall have perfected a judgment on his claims *462TIiis seems to us a more proper mode than to allow the claims of the defendant, as covenantee under the mortgage deed, to defeat the present action.
Exceptions overruled.