
    Thomas Sumter, against John Welsh.
    Columbia,
    1804.
    Where there as a defect of title or of the quantity of Sand, it may he given in evidence against plaintiff 9s demand, npon a bond or note, &e. given fdr the consideration money before eviction.
    Any grant ta-jeen out on an elder survey, rwithin six months after the elder survey is made, is null and void; as every man has six months allowed by law to take out and perfect his grant,after he runs it out.
    ASSUMPSIT on a note of hand. Verdict for defend, ant in Lancaster district. Motion for new trial.
    The note on which this action was commenced, was given for the consideration money of a tract of land, 263/. 10s. 8d. sterling.
    Defendant pleaded in discount, under the terms of the discount act, sundry payments, and also a deficiency of 800 acres of land, part of the tract sold him, which had been taken away from him by an elder survey.
    On the trial, the plaintiff contended, that this deficiency, or the value of it, could not be regularly set off or given in evidence against the defendant’s note of hand ; for that, in the deed he had executed to defendant, there was a general warranty of title ; and until there was a recovery against defendant by a title paramount, and an eviction in consequence 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 annested 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 j
   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 lapds 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*

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.  