delivered the opinion of the court.
This is an action of debt on a bond.
The defendants pleaded a parol defeasance, which stipulated, that if certain property should not be recovered, the writing obligatory, declared on should be void. To this plea the plaintiff' demurred.
The court overruled the demurrer, and gave judgment for the defendants, from which judgment the plaintiff appealed to this court.
The technical rule, that a parol agreement cannot be pleaded at law, to defeat, an agreement under seal, cannot be departed from without destroying all distinction between sealed and unsealed instruments. Chitty on Contracts, 423-3-2; Starkie on Evidence, 548; Clark vs. Henry, 2 Cowan’s Rep. 324; 21 Wend. Rep. 628.
Cases have been decided, that seem to militate against this rule, but most of the cases referred to by the counsel for the defendant in error rest upon a different principle; — As where there had been a substantial performance, parol evidence was admitted to prove the waiver of a literal performance. This is a mere interference with the fulfilment of the contract, and is not an attempt to prove that its terms were different from those stipulated in the sealed instrument.
The judgment must be reversed, and judgment rendered for the plaintiff