V. other things, they were not certified in the manner di Harrington. rected by the act of congress, in that case made and provided. When the presiding Judge, (GRIMKE,) having great doubts upon the subject, directed that they should all be brought up to this court, for the opinion of all the Judges on the point of their regularity and admissibility in the courts in this state. Which being inspected and examined, it appeared that they were not certified under the seal of the court where the suit was depending, nor was it certified that such court was without a seal; and further, that the certificate of the Judge was not on the proceedings them selves, giving them authenticity, but on a separate piece of paper, which formed no part of such proceedings. For these defects and irregularities, the Judges were unanimously of opinion they could not be received as evidence of the commencement and existence of a suit be tween the same parties, for the same cause of action. But in order that defendant should not be deprived of the benefit of his plea, that day should be given, and time allowed to him, to send for, and obtain the necessary documents properly authenticated, agreeable to the act of congress. All the Judges present, ROGER SMITH against MARY BRISBANE, Executrix of UPON sci, fa. to revive judgment in Kershaw dis- trict. Columbia, Amendment correct an er- ance between sci. fa. and Plea, variance between the suit and the original record, ror in a vari- Whereupon the plaintiff moved the court for leave to The present, therefore, was a motion to set aside this But the court thought it regular and proper to give Motion refused. All the Judges present, to meet the justice of the case before rical mistake. Columbia, 1804. Where there is a defect of THOMAS SUMTER against JOHN WELSH. ASSUMPSIT on a note of hand. Verdict for defend. title or of the ant in Lancaster district. Motion for new trial. land, it may quantity of The note on which this action was commenced, was given for the consideration money of a tract of land, 2631. be given in evidence a gainst plain- 10s. 8d. sterling. tiff's demand, upon a bond or note, &c. consideration Defendant pleaded in discount, under the terms of the given for the discount act, sundry payments, and also a deficiency of money before 800 acres of land, part of the tract sold him, which had from him by an elder survey. eviction. Any grant taken out on an elder survey, within SIX months after been taken away On the trial, the plaintiff contended, that this deficiency, the elder sur- or the value of it, could not be regularly set off or given in is null and evidence against the defendant's note of hand; for that, in void; as every vey is made, man has six the deed he had executed to defendant, there was a general months allow ed by law to grant, after he runs it out. by law w warranty of title; and until there was a recovery against take out and defendant by a title paramount, and an eviction in conseperfect his quence of such recovery, he was not liable on his warranty. And if he was not liable on this warranty until eviction, then it could not be set off against his demand on the note, as he would always remain answerable on his covenant in the deed. Plaintiff further argued, that the grant set up in opposition to his, was a younger grant; consequently his was the preferable claim in point of law, agreeable to a well known maxim, that the eldest deed and last will are always to be preferred. For defendant, in reply, it was admitted, that no action. of covenant would lie for a breach of warranty in the deed, to recover back the consideration money and damages for the breach of it, until an eviction by title paramount. Yet it was contended, that it was competent and legal for defendant to defend himself against any demand for the consideration money which the plaintiff might make against him for the value of the land he had lost, on the ground that the consideration itself had failed for which his obligation was given, pro tanto; and that a great number of cases had been determined on these principles in our courts of justice. That with respect to the plaintiff's grant being older in date than the one which took away the lands sold to defendant, the fact was also admitted; but it was located on an elder survey, and the time for taking out the junior grant had not expired, before the plaintiff had intruded himself, and illegally obtained the grant, which the first survey gave to the grantee who took away the land, which were matters of record, and apparent on the face of the grants, and the surveyor-general's plats and certificates annexed to them; so that even if eviction had been necessary in a case of this sort, the evidentia rei was tantamount to an eviction by title paramount. The jury, under the direction of the presiding Judge, (GRIMKE,) after making the allowances for the different sums paid by defendant on his note, and also for the value of the land taken away by a prior right, gave a verdict for the defendant for dollars, which had been overpaid by him, after making what they conceived the fair deductions for the land taken away at a pro rata valuation for it. This was a motion for a new trial ; When, after due consideration, the Judges refused it on both the principal grounds urged by the defendant for it. 1st. Because it had been determined over and over again, that wherever there has been an evident failure in quantity or quality of lands sold, and the defendant is sued for the consideration money, he may defend himself against such claims before eviction, on the ground that the consideration has failed; which is an equitable defence, but of late has been permitted in our common law courts, as well as in a court of equity, in order to prevent a circuity of actions, and to bring about speedy justice between the parties. Sumter V. Welsh. Sumter V. Welsh. 2d. With respect to the dates of the two grants, the act is very plain and explicit on this head. It declares that every man who makes a survey, shall have six months to take out and perfect his grant, and that any other grant, (though older,) taken out for the same land within that time, shall be considered as null and void. Rule for new trial discharged. All the Judges present. Columbia, 1804. The value of a horse lent to THOMAS CARSAN against ELIJAH RAMBERT. CASE, on a summary process, in Edgefield district stake at a ga- Decree for defendant. ming-table, may be reco Motion to set aside this decree. This was a case in the summary jurisdiction of the court vered by the of common pleas, for the value of a horse, 70 dollars, lent lender from if actually de though no con the borrower, by Carsan, at a tavern where gaming was going forward, livered over, to stake on a game of cards. The defendant lost the game, tract is good and the winner took the horse off, by the consent of both the for money or other proper- parties to this suit. Some time afterwards, the plaintiff apty lost at play. plied to defendant for payment of the value of the horse, which he estimated at 70 dollars; but defendant refused to pay it, alleging that it was a gaming debt, and that he was not bound in law to pay it. Whereupon he brought this suit. Upon the trial, all the facts were admitted, and the case turned upon the legal responsibility of the defendant to pay this debt. For the defendant it was said, that the lender was present and saw the game going forward, and lent the horse |