
    Fairfax v. Lewis. The Same v. The Same.
    November, 1823.
    Independent Covenant. — What constitutes an independent covenant.
    Deed — Tender by Purchaser. — A purchaser is not bound to prepare and tender a deed to the vendor, unless such an obligation can be inferred from the terms of the contract.
    Pleading and Practice — Plea of Covenants Performed— Evidence to Support — Case at Bar. — In a contract between A. B. and C. by which A. purchases from B. part of a tract of land, the title to which was in D. and B. covenanted to procure a conveyance for that part of the land to A. and C. purchases the residue of the land of B. and purchases also from A. that part which A. had purchased of B. for which A. covenants with C. to procure him a proper conveyance; and, in the same contract, B. covenants with C. to procure him a conveyance of the whole tract; upon the general piea of covenants performed by A. proof that B. procured a conveyance of the whole land to C. does not support the issue on the part of A.
    These were two actions of covenant; one brought in the Superior Court of Taw for Jefferson county, by Lewis v. Fairfax; the other brought in the Superior Court of Law for Lo.udoun county, by Fairfax v. Lewis.
    _ *The covenant on which both ac-_ tions were founded, was in substance as follows:
    On the 26th of April, 1804, Philip Fitz-hugh, Joseph Lewis, junior, and Ferdi-nando Fairfax, entered into an agreement, under seal, by which the said Fitzhugh purchased of the said Lewis his estate called Clifton, in Loudoun county, with the mill, distillery, and every implement belonging thereto, &c., the quantity of land being about 203 acres, possession to be delivered on the first day of May following, with a good conveyance, by a clear deed, with general warranty, and free from every incumbrance, except a mortgage for four thousand pounds, to Joseph Tid-ball, payable the first day of May, 1813, with interest, annually, from the first of May next; which mortgage the said Fitz-hugh assumed to discharge as a part of the purchase consideration; and likewise to assign over to said Lewis an obligation or assumpsit of Richard Bland Lee, for $5,000, and to pay the balance of $8,333 1-3, out of a tract of about 19,200 acres, upon Bacon Creek of Green River, Kentucky, which the said Fitzhugh held the obligation of Thomas Lang, to convey in due form, when required by the said Fitzhugh, and which land Fitzhugh warranted to be clear of all claim for taxes or public dues, rating the said laud at $2 per acre, on an average. Then Lewis bound himself to procure to Fairfax, or whom he might direct, a conveyance or assignment, in due and effective form, of a certain claim held by Adam Douglas, as administrator of Robert 'Burn-bull, deceased, upon Dr. fi. W. Bull, estimated at about $8,000, together with a proper assignment of the mortgage on said Bull’s land, by which the said claim is secured, with the benefit of the suit in Chancery then depending for the foreclosure of the same; also to assign or procure to the said Fairfax the above mentioned claim of Fitzhugh cu R. B. Lee, for $5,000; and likewise to procure a proper conveyance of the said part of the said Green River land to amount to $8,333 1-3, at two '‘‘dollars per acre as aforesaid, to the said Fairfax, from the said Thomas Lang; the whole (subject to corrections,) put at $21,333 1-3, for which the said Lewis agrees to receive, and the said Fairfax to make payment as follows; The balance now remaining unsold of the Piedmont tract in Loudoun, and to the southward of what was before conveyed to said Lewis, estimated to be about 2,500 acres, but to be ascertained by surveys already made thereof by William H." Harding, at $8 per acre, say to the amount of $20,033, of which the said Fairfax is to convey his reversion-ary interest, with general warranty; also wood-land on the Blue Ridge or Short Hill, or leased land in the Valley between, selected by said Fairfax, as soon as conveniently can be done, at his selling prices (but not exceeding ten dollars per acre,) to make up the balance, say $1,300; and should the above agreement take effece, the said Fitzhugh engages to procure from the said Thomas Lang a conveyance of the whole of the said Green River tract of land to the said Fairfax, according to the said Lang’s obligation to convey the same, and to receive in payment the following, viz: certain lands in the counties of Washington and Montgomery, in Virginia, bought by the said Fairfax, of Hugh Holmes, and to be conveyed by either of them to the said Fitzhugh, with special warranty, at the price of $5,000; certain lands in Pennsylvania, bought by said Fair-fax of Richard Bland Lee, whose conveyance to said Fitzhugh, in due form, said Fairfax shall procure, the quantity per surveys or patents now exhibited, for $8,400; a tract of land in Wood county, per patent, said to be 5,000 acres, to be conveyed to said Fitzhugh by Thomas Wilson of Mor-gantown, as he would have conveyed to said Fairfax, at $5,500; certain lands in Bourbon county, Kentucky, conveyed by Fendall to said Fairfax, and by him to be conveyed to said Fitzhugh, by a similar deed, for $4,000; the lot and houses in Hillsborough, purchased by said Fairfax from Thomas D. Stevens, for $1,606.66; the lot *and houses in the same place purchased by the same from Thomas Leslie, for $1,200, to be conveyed without delay, and immediate possession given, except a lease for the first for one year, the rent thereof to go to the said Fairfax; the lot of Stephen Donaldson on the Arcadia tract, subject to the life estate of Mrs. Sarah Fairfax, and the lease of said Donaldson, say 335 acres, at $12, equal to $4,020; any balance on either side to be made up in some way convenient and accommodating to the party having the same to pay. It was farther agreed between the parties, that this contract shall take immediate effect, and be binding upon each of them, their heirs, executors, and administrators, when the said Fitzhugh shall determine to take the Clifton estate, on the terms first above expressed, which he has the option of accepting or refusing, upon actual inspection, to be made by him, without delay.
    This agreement_ was signed and sealed by Lewis and Fairfax; and the following writing was subjoined: “After viewing the Ciifton estate, I do hereby ratify the above contract this 3d day of May, 1804.
    Philip Fitzhugh, (Seal.)”
    An addition was made to this agreement, dated the 4th of May, 1804, by Lewis and Fairfax, under their hands and seals, by which it is stipulated, That for ascertaining finally the difference between the true quantity of land of the Piedmont tract, conveyed to the said Lewis by the said Fairfax, and the "estimated quantity of 2,361Jf> acres, they will submit to a survey to be made without, delay, by William H. Harding, at the instance and expense of the said Lewis, except as to the lots of Joseph Thompson, William Hough, and Samuel Clendenning, and the slip on Taylor’s line, sold to James Mcllhaney, which have not been already surveyed; and that when ascertained, such difference ’ (excess. or deficiency) is to be accounted for at $8 per acre: that Fairfax shall cause to be immediately conveyed *by the said Harding to the said Lewis the land which Harding owns upon Broad Run, on the Tankersville tract (said to be about 158 acres,) by actual survey, at $16 per acre, payable first in the deficiency of the said Piedmont land, conveyed to Lewis as aforesaid, compared with tlie property received of the said Lewis, according to the within contract, when the decree of the Chancellor shall fix the amount of Turn-bull’s claim on Bull, which is now received by Fairfax, at not less than $6,000, with interest from the 1st of January, 1801, and the balance in some property convenient and accommodating to both parties.
    In the action of Lewis, v. Fairfax, the declaration assigns as a breach of covenant, that the said Fairfax “did not immediately, or at any time since, cause to be conveyed by William H. Harding, to the said Lewis, the land which Harding then owned upon Broad Run, on the Tankersville tract, (said to be 158 acres, by actual survey,) at $16 per acre, &c.”
    Fairfax pleaded covenants performed; and a special plea to the following effect: that he has always been ready to cause to be conveyed by the said William H. Harding to-the said-, the land which Harding owned on Broad Run, said to be 150 acres by actual survey, if he had been thereto required; but the plaintiff never did require or demand a conveyance of the same, according to the tenor of the said covenant; and he put himself upon the country.
    To the first plea, the plaintiff replied generally, and issue was joined; and to the second piea he put in a general demurrer. Upon argument, the demurrer was sustained by the Court, and the plea overruled.
    At a subsequent term, the cause came to trial, and the jury found a verdict for $2,528 damages, with interest from the 4th day of May, 1804, until paid. The Court gave judgment accordingly.
    Fairfax obtained a supersedeas.
    In the suit of Fairfax v. Lewis, (which is founded on the same agreement, as before mentioned) the declaration alledges, that Fairfax had well and truly performed all the covenants and agreements on his part to be performed, so far as they regard the said Lewis, and in particular, he avers that on the 4th -day of May, 1804, he conveyed to the said Lewis by a good and sufficient deed, the Piedmont tract of land in the contract mentioned, which said tract contained 2,361J4 acres, and which said conveyance was accepted by the said Lewis, under and by virtue of the agreement aforesaid; nevertheless, the said Lewis has altogether failed to perform the said agreement, so far as it regarded the said Fairfax, and has broken the same in these instances, viz: the said Lewis has failed to assign to' the said Fair-fax, the claim held by Adam Douglas, as administrator of Robert Turnbull, de- 1 ceased, upon W. Bull, estimated at $8,000, and altogether failed to establish the said claim to amount to $8,000, or even 7,200, but that the said claim only amounted to $7,192: that the said Lewis has altogether failed to' assign or procure to the said Fairfax the claim of Philip Fitzhugh on Richard B. Lee for $5,000: that the said Lewis has altogether failed to procure a prpper conveyance of the said part of me said Green River land, to the amount of $8,333 33 cts. at two dollars per acre as aforesaid, to the said Fairfax from the said Thomas Lang; and that the said Thomas Lang had not, at the time of the execution of the agreement aforesaid, or ever after, a good, sure, perfect and indefeasible _ estate in fee, in and to tlie said Green River tract of laud, whereby lie could convey, by a proper conveyance, to the said Fairfax, the aforesaid part of tlie said tract, amounting at $2 per acre io $8,333 33 cts.
    The defendant pleaded covenants performed; whereupon issue was joined.
    At the trial the plaintiff filed a demurrer to the evidence of the defendant, to support on his part the issue joined, which the defendant refused to join; but the Court directed *him to join in the said demurrer, on the plaintiff’s consenting that the same should be subject seuting that the same should be subject to the following terms; “The demurrer in this case is also to be subject to the opinion of the Court on this point, to wit, whether as the pleadings and issue in this cause arc, it was incumbent upon the plaintiff to prove a performance, or an offer on his part to perform the following covenants contained in the deed set forth in the declaration, to wit; the covenant for the conveyance of Woodland on the Blue Ridge, or Short Hill, or leased land in the Valley, and the covenant for the conveyance of the lot of Stephen Donaldson on the Arcadia tract, and the covenants for the conveyance of the land owned by William Harding upon Broad Run in the Franklin tract, of the performance of which covenants, or of any offer or tender to perform them, no evidence was offered to the jury.” To these terms the plaintiff assented, and the defendant thereupon joined in the demurrer. Whereupon a juror was withdrawn, and the rest of the jury discharged from rendering a verdict.
    On the trial, five bills of exception were filed.
    1.The plaintiff offered in evidence, a certificate purporting to be the certificate of the Register of the Land Office of the State of Kentucky, tinder the seal of the said Office, certifying, that 19,000 acres of land entered with the Auditor for taxation, in the name of Thomas Lang, jun. was lying in Harding county and as patented to William Pollard, was exposed to sale in the following manner (“as appears from the hooks of the sale of non-residents land in my office,”) viz. 1,000 acres to W. J. Adair in the year 1804, for the taxes and costs due thereon for the year 1803, &c. signed Mark Harding, R. L. Off. and sealed with his official seal.
    There was also a certificate purporting to be that of the Governor of Kentucky, under the seal of the said State, certifying that the said Mark Harding is and was, at the time of signing the foregoing certificate, Register of the Laud Office of Kentucky, and that full faith and credit should be given to all his official acts. Signed Charles Scott, and countersigned by J. Bledsoe, Secretary.
    The defendant objected to the said evidence, stating, that the same was not authenticated according to the act of Congress; and the Court sustained the objection, and refused to suffer the said certificates to be read. To this opinion the plaintiff excepted.
    2. The plaintiff offered in evidence a certificate purporting to be a certificate of the Auditor of the State of Kentucky, stating, that on the 12th day of August, 1797, John Philips listed for taxation in the office the following tracts of land, viz: 19,000 acres, third • rate, lying in the county of Harding on Green River, and patented in the name of W. Pollard, on the 25th day of November, 1803. The above tract of land was transferred from John Philips to Thomas Lang, jr. &c. signed George Madison; and a certificate of the Governor, in official form, that George Madison is Auditor of public accounts for the said Slate.
    The plaintiff, at the time, offered in evidence a paper purporting to be a copy of “an act providing for the redemption of lands sold for taxes,” in these words, &c. certified by J. Bledsoe, Secretary of State, to be a true and perfect copy of the original enrolled bill.
    The defendant objected to the reading the said papers, stating, that they were not duly authenticated according to the act of Congress; and the Court sustained the objection. To that opinion, the plaintiff excepted.
    3. The plaintiff offered to prove, by parol evidence, that the tract of 19,200 acres on Green River in Kentucky, mentioned in the contract aforesaid, was not then worth, nor is it now worth, the taxes payable on the said land; but the defendant objected to such testimony, and the court sustained the objection. The plaintiff excepted.
    4. The plaintiff offered evidence to prove, that the property in the aforesaid contract mentioned, called Clifton, conveyed as aforesaid by the defendant to the said Philip Fitzhugh, was not at that time intrinsically worth $8,000; *and that the tract of land called Piedmont, conveyed as before-mentioned by the plaintiff to the defendant, was of greater value than the price at which the same was rated. But, the defendant objecting to this evidence, the Court refused to admit it. To this opinion, the plaintiff excepted.
    5. The plaintiff offered in evidence a copy of a contract between Ezekiel W. Bull and Philip Fitzhugh, dated the 4 th of May, 1804, with two endorsements thereon, the last of which is in the hand-writing of the said Bull. The contract stipulates, that, in consideration of a claim held by the said Bull against Theodorick Lee, to the amount of $11,000, the said Fitzhugh agrees to have conveyed to the said Bull, the two following pieces of property, viz: two certain tracts of laud lying in Bourbon county, Kentucky, and several tracts of land in the county of Lycoming and Mif-flin, Pennsylvania; all which property the said Fitzhugh is fo receive from Fairfax; but, as the valuation of t he said property exceeds the claim of the said Bull, in the sum of $1,420, the said Bull agrees to account with the said Fitzhugh for the same, within the term of three months from the time the title papers are passed to him, if he should not, before that time, sink the claim of any balance, by an order on said Fitzhugh, from General Henry Lee.
    The endorsement states, that the contract is subject only to the condition of Fairfax receiving from Thomas Lang, either mediately through Fitzhugh, or directly from himself, a conveyance of certain lands on Green River free from every in-cumbrance, agreeable to the contract entered into between Fairfax and Fitzhugh, on the 36th of April last. Signed by Fitz-hugh and Bull.
    There is also an endorsement signed by Bull, stating that the first endorsement is in the hand-writing of Fairfax, and by his suggestion annexed to the said agreement.
    The said copy of the agreement and endorsements, was offered for the purpose of impeaching the truth. of the said Bull’s deposition; and the defendant having objected *thereto, the Court permitted the said testimony to go to the jury for the purpose aforesaid, but informed the plaintiff’s counsel, that if he persisted in using it, the Court would not compel the defendant to join in demurrer; the Court being of opinion, that the de-murrant, in such a case as this, could not be. permitted to impeach the truth of the evidence demurred to; whereupon the plaintiff’s counsel withdrew the said copy and . endorsement, and excepted to the opinion of the Court.
    The demurrer to evidence was, in substance, as follows: To maintain the issue on the part of the defendant, he gave in evidence to the jury the contract entered into, between the plaintiff and defendant and Philip Fitzhugh, with the endorsements thereon, and additions thereto, dated the 26th of April, 1804, as above recited:
    .A deed from the defendant to Philip Fitzhugh, for the property called Clifton, dated the 4th day of May, 1804:
    A letter from Fairfax to Lewis, dated the 9th of February, 1805, informing him that Dr.. Bull intended to attempt to get rid of his debt to Robert Turnbull, (assigned to Fairfax by Lewis,) by shewing usury in the transaction:
    A deed of mortgage from Bull to Turn-bull, dated the 21st of April, 1801, to secure a debt of $6,000.
    A decree of the Staunton Chancery Court, foreclosing the said mortgage:
    The defendant then proved by a witness, that the plaintiff received the proceeds of the sale of the mortgaged property aforesaid, made under the decree afotesaid; and that the assumpsit of Richard B. Lee, mentioned in the contract before mentioned, was assigned to the plaintiff, according to the terms of the said contract.
    A copy of a receipt given to Fairfax, 21st of June, 1804, by Fitzhugh, acknowledging his having received from the said Fairfax, his obligation to convey, when required, his reversionary right of Donaldson’s lot in Arcadia; also his orders on Stevens and Leslie, for a conveyance of their lots and houses in Hillsborough, &c.
    «The deposition of Bull, stating his impressions of the understanding of the parties in the contract of the 26th of April, 1804:
    The evidence of Thomas Lee, to prove that a deed was executed by Thomas Lang to the plaintiff for the 19,200 acres of land, mentioned in the said contract; which deed was put into the possession of the said Lee, as the agent of the said plaintiff, and was enclosed by him, the said Lee, in a letter to the plaintiff, which letter was produced by the plaintiff; suggesting an imperfection in the deed, in taking Mrs. Lang’s relinquishment of dower, and advising the proper course to have the error corrected, &c.
    The plaintiff gave in evidence on his part, the conveyance of himself, to the defendant, of the Piedmont land, dated the 4th day of May, 1804:
    A letter from Fitzhugh to Lang, dated 21st of June, 1804, informing him that as Fairfax deemed the deed to him (Fitz-hugh) insufficient, he requested that Lang would execute another deed to Fairfax, referring to the bounds of the original patent, with Mrs. Lang’s relinquishment taken in proper form, as the laws of Kentucky require, &c.; and he further proved that Lang received the said letter through the agent of the plaintiff.
    The plaintiff proved that he sent an agent to the house of the said Lang, with instructions to procure a deed for the Kentucky land, and to view the said land and make enquiries about its boundaries, natural advantages, soil, value, title, &c.: that Lang objected to give such deed as the plaintiff requested: that Lang gave the agent no receipt for the payment of taxes of the said land.
    Upon this demurrer to evidence, the Superior Court gave judgment for the defendant.
    Fairfax obtained a supersedeas.
    Nicholas, for the appellant.
    Wickham, for the appellee.
    *November 22.
    
      
      Pleading and Practice — -Plea ot Covenants Performed — Evidence to Support. — The plea of “covenants performed” can only be supported by evidence which shows that the defendant has performed his covenant, and not by evidence showing that his own performance was excused by the act of the plaintiff or any other.. Chewning v. Wilkinson, 95 Va. 669, 29 S. E. Rep. 680, citing principal case and Scraggs v. Hill, 37 W. Va. 706, 17 S. E. Rep. 185, as authority. The principal case is also cited in Fairfax v. Lewis, 11 Leigh 247. See further, monographic note on “Covenant. The Action of” appended to Lee v. Cooke, 1 Wash. 306.
    
    
      
      JUdgh Cábele absent from indisposition.
    
   JUDGE GREEN.

The contract upon which these actions were founded, was entered into on the 26th day of April, 1804, between Joseph Lewis, Ferdinando Fairfax and Philip Fitzhugh; by which it was stipulated between Lewis and Fitzhugh, that Lewis sold to Fitzhugh his Clifton estate, subject to a mortgage for £4,000, for which Fitz-hugh was to pay by assigning to Lewis an obligation of Richard B. Lee for $5,000, and the balance of $8,333 33 cts. out of a tract of 19,200 acres of Kentucky land; for the conveyance of which in due form when required, Fitzhugh held the obligation of Thomas Lang, and which land Fitzhugh thereby warranted to be clear of all taxes and public dues; the land to be rated at two dollars per acre. Then Lewis stipulated to procure an assignment to Fairfax or to whom he might direct, of a mortgage from Bull to Turnbull, estimated at about $8,000, and to assign or procure to said Fairfax the said obligation of Richard B. Lee for $5,000; and likewise to procure a proper conveyance of the said part of said Green River land, to the amount of $8,333 33 cts. at two dollars per acre, to said Fairfax from said Lang: the whole property so to be transferred to Fairfax by Lewis, put at $21,333 33 cts. subject to correction. For which Lewis agreed to receive, and the said Fairfax to make payment as follows: — by conveying to Lewis, with general warranty, his reversionary interest in the Piedmont tract of land, estimated to be about 2,500 acres, but to be ascertained by surveys already made by Ilarding at $8 per acre, say to the amount of $20,030 33 cts. and the balance, say $1,500, in other lands on the Blue Ridge or Short Hills, or in the Valley between, at his usual selling prices, not exceeding $10 per acre, as soon as conveniently could be done; and if the said agreement should take effect, Fitzhugh engaged to procure from Lang to Fairfax, a conveyance of the whole of the said Kentucky laud, according to Lang’s obligation to convey the same, and to receive in payment certain property specified in the agreement. This agreement was to be binding *on the parties, -whenever Fitzhugh should determine to take Clifton, which he had an option to take or refuse, after he should inspect if, without delay. On the 3d of May, 1824, Fitzhugh, by endorsement on the agreement, rectified it; and on the next day, (the 4th of May, 1804,) Lewis and Fairfax entered into a supplemental contract, endorsed on the original agreement, to the following effect: that, for the purpose of ascertaining finally the quantity of the Piedmont tract of land that day conveyed to Lewis by Fairfax for the estimated quantity of 2,30154 acres, an immediate survey should be made, and that when ascertained, the deficiency or excess of the real quantity, compared with the estimated quantity, should be accounted for at $3 per acre: that Fairfax should cause to be immediately conveyed to Lewis by Harding a tract of land belonging to Harding, (said to contain 158 acres) by actual survey, at $16 per acre; to be paid for by Lewis, first in the deficiency of the Piedmont tract of land, according to the within contract, when the amount of Bull’s mortgage, which was then received at not less than $6,000 with interest from January, 1st, 1801, was fixed by the decree of the Chancellor, (it appears by the contract, that a bill to foreclose the mortgage was then depending,) and the balance in some property convenient to the parties. Upon these contracts Lewis and Fairfax mutually- instituted actions, each against the other. In that of Lewis v. Fairfax, the only breach assigned was, that Fairfax had failed to procure Harding to convey to Lewis the 158 acres of land mentioned in the supplemental contract.

The defendant pleaded “covenants performed,” and that he had always been ready to procure the conveyance from Harding to Lewis, but that the plaintiff had never demanded it. Upon the first plea, the plaintiff took issue, and demurred generally to the second. The issue was found for the plaintiff; the demurrer sustained, and judgment given on the verdict, for the plaintiff.

-'‘The appellant objects, that the covenant alledged by Lewis to be broken by him, was dependant upon the performance by Lewis of his covenants, contained in the original agreement, and that the performance of those covenants should have been averred; that the deficiency, appearing upon an actual survey in the quantity of the Piedmont land, should also have been averred; and that the plaintiff should have averred, that he prepared and tendered a deed for, and demanded a conveyance of Harding’s land; and that without such averments in the declaration, the plaintiff’s action could not be maintained.

The property stipulated to be transferred by Lewis to Fairfax, was estimated at $21,333 33 cts. subject to correction. There was no uncertainty as to the value of any part of this property, except as to Bull’s mortgage, which depended upon the event of the suit for foreclosure, then depending. The quantity of the Piedmont land, which Lewis was to take in payment, at $8 per acre, was also uncertain. Tt was estimated at about 2,500 acres. But it was by the original contract, to be ascertained by surveys already made, but not in the possession of the parties. 1 think the legal effect of the original contract was, that when the quantity and value of these subjects respectively, then uncertain, should be ascertained, Fairfax was to make good the amount of Lee’s bond, the Kentucky land and Bull’s mortgage,, as it might turn out to be more or less, in other lands on the Blue Ridge or Short Hills, or in the Valley between them. Tt appears from the supplemental contract, that the Piedmont land was then ascertained, probably in the mode prescribed by the original contract, to contain only 2,36154 acres, falling short of the estimated quantity by 138J4 acres; and Harding’s land seems to have been substituted for the land originally in contemplation of the parlies, on the Blue Ridge or Short Hills, or in the Valley between them. And it was then agreed, that a survey of the Piedmont land should be made, with a view to- ascertain its actual deficiency; and when the amount of Bull’s mortgage ’^should be ascertained by a decree, and the survey made, the value of the property according to the stipulated prices in the agreement, received of Lewis according to the original agreement, should be compared with the real value of the Piedmont and Harding’s land, at the stipulated prices, and the difference paid in some property convenient to the parties. This was obviously the intent of the parties, deduced from the terms of the contracts; and if so, the stipulation in relation to the conveyance of Harding’s land, was an independent covenant. Harding’s land was to be conveyed immediately. The expected decree could not be rendered for some time, and no matter what was the amount of the decree, or,the quantity of land ascertained by the survey, Fairfax was bound to procure the conveyance of the land. Tf the laud had turned out to be 3,000 acres, and the mortgage nothing, still Fairfax was bound to procure the conveyance, and seek a compensation, under the provision that the difference should be paid in property convenient to the parties. PTe could not compensate himself by withholding the property which he had stipulated to procure a conveyance for immediately. For the same reasons, a sttrvey of the Piedmont lands was not a precedent condition. That was to be made only for the purpose of ascertaining what difference was to be paid in property by Lewis after he had received a conveyance of Harding’s land, and the amount of Bull’s mortgage was ascertained.

It is true that the performance of Lewis’s stipulations with Fairfax, by the terms of the original agreement, was a condition precedent to the performance of Fairfax’s stipulations with Lewis, in the same agreement. Fairfax stipulates to pay for the property to be transferred to him by Lewis in the manner specified; and until the property was transferred, he was not bound to pay for it by the contract. But although, by the supplemental agreement, Harding’s land -ivas substituted for the land on the Blue Ridge or Short Hills, or the Valley between, yet it was substituted with this difference; that by the 'original contract, Fairfax was not *bound to cqnvey the lands which he stipulated to convey to Lewis, until the latter had performed his covenants; by the supplemental contract, he was bound to procure a conveyance of Harding’s land, immediately and unconditionally, without regard to the performance by Lewis of his covenants. There is a general averment in the declaration, that Lewis had performed all his covenants contained in the original and supplemental agreements. As no averment of performance on his part was necessary, there is no occasion to enquire here, whether this general averment would be sufficient as'to the conveyance of the Kentucky land, if any averment as to that were necessary.

If it be true, that a party who covenants to convey or procure a conveyance of land, without any limitation of time, has his lifetime to perform his covenant, unless hastened by request; that doctrine does not apply to this case, in which the covenant is to procure the conveyance, immediately. This expression limits the time to the shortest possible period within which the conveyance could be conveniently procured, and has the same effect, as if the covenant had been to procure the conveyance upon request, and the request had been made immediately upon the execution of the covenant. The demurrer was, therefore, properly sustained. Nor do I think that it was necessary to aver in the declaration, that a deed was prepared and tendered by the plaintiff. Upon the principles of the common law, any one undertaking to do’ an act or cause it to be done, is bound to do it or cause it to be done at his peril, and to find the means of doing it, unless it cannot possibly be done, without the active concurrence of the party with whom the contract is made. In England it seems to be doubtful, whether, in case of a contract to convey, it is not necessary that the purchaser should prepare the conveyance and tender it for execution, whether the contract provides that it shall be made at his expense or not. But if it be necessary, it is an exception to the general rule of law, and founded upon the practice of the profession in *that County as to Conveyancing. No such practice prevails here, and there is no reason with us, why the general rule of law aforesaid should not prevail. I think therefore, that the judgment in the action brought by Lewis v. Fairfax, ought to be affirmed.

In the action of Fairfax v. Lewis, the declaration avers, in general terms, that the plaintiff had performed all the covenants on his part to be performed, as far as they regarded the defendant, and particularly, that he had conveyed the Piedmont lands, and assigns for breaches of the covenants, by the defendant; 1, that he had altogether failed to assign Bull’s mortgage, and altogether failed to establish the said claim to amount to $8,000, or even $7,200, and that in fact it amounted only to $7,192; 2, that he had failed to assign Lee’s bond; and, 3, that he had failed to procure a proper conveyance of the said part of the Kentucky land, to the value of $8,333 33 cents, at $2 per acre; and that Lang had not, at the time of the execution of the agreement, or ever after, a good, sure, perfect, and indefeasible title in fee to the land, whereby he could convey to the plaintiff, the said part of said land. To this declaration the defendant pleaded, that he had well and truly done and performed, on his part, all and each of the covenants in the said covenant contained, which, according to the true intent and meaning thereof, he was bound to perform. To which the plaintiff replied generally; and upon the trial of the issue; the plaintiff demurred to the evidence, and one of the jurors was withdrawn, with the assent of the parties. The defendant objected to join in the demurrer, but upon the condition, that the demurrer should be subject also to the opinion of the Court, whether,, upon the pleadings and issue, the plaintiff was bound to prove a performance of, or an offer to perform, on his part, the covenants for the conveyance of Woodland, on the Blue Ridge, or Short Hills, or leased land in the Valley; and for the conveyance of the lot of Stephen Donaldson, and for the conveyance of Harding’s *land; as to all which the plaintiff offered no evidence It appears from the evidence demurred to, that Lewis had procured the assignment of Bull’s Mortgage: that the mortgaged property had been sold under a decree of foreclosure; and that Fairfax had received the proceeds of the sale; and that Lewis had assigned to Fairfax Lee’s bond. It moreover appears, that on the 21st of June, 1804, Fitzhugh had executed a receipt to Fairfax, in which it was stated, that the former had given an order to the latter on Lang, to convey the Kentucky land. That order is given in evidence, and is in the shape of a letter from Fitzhugh to Lang, dated on the same day with the receipt, informing Lang that his deed to Fitzhugh, for the Kentucky land, was deemed by Fairfax (to whom he had sold the land,) insufficient, and requesting him to deed to Fairfax, the property, referring to the bounds of the original patent, by a deed to which Mrs. Lang shall be a party, and her examination taken and certified, as the laws of Kentucky require; the deed to contain a covenant for further assurance; and that the land is free from all incumbrances whatsoever, and a special warranty of 19,300 acres, within the bounds of the original ■ patent. In consequence of this order, Lang and wife executed a deed to Fairfax, for the Kentucky land, the particular terms of which do not appear. But, it appears, that it was not a deed with general warranty. Mrs. Lang’s privy examination was taken under a commission from the Clerk’s office of the Court of Botetourt county, in Virginia, where Lang resided. This deed was delivered to the agent of Fairfax, who enclosed it to^ Fairfax, in a letter which Fairfax received. He informed his agent, that he was dissatisfied with the deed, as it was not such as his contract entitled him to. But, it does not appear that he ever returned the deed to Lang, or gave notice of his dissatisfaction with it to Lang, Lewis, or Fitzhugh. Upon this demurrer, the Court gave judgment for the defendant, and the plaintiff appealed.

*The view already taken of the contract, shews, that the performance by Lewis of the covenant on his part, in the original agreement, was a condition precedent to the performance of Fairfax’s covenants in the same agreement; and that the conveyance by Fairfax of Harding’s land, stipulated for in the supplemental agreement, was wholly independent of all other covenants in the contract, on both sides. It was therefore unnecessary for the plaintiff to aver or prove the performance of any covenant on his part. But, if it were otherwise, the plaintiff having averred and proved the performance of the most important stipulation on his part, and the defendant having accepted the conveyance of the Piedmont lands, the latter could not resist the execution of the covenants on his part, because Fairfax had failed, in part, in the performance of his. Otherwise, he would have held the property conveyed to him, without responsibility to pay for it in any way. The failure of one party to perform his covenants, can in no case excuse the other party from performing his, unless such failure goes to the whole consideration.

There can be no question, that Lewis had performed all his covenants alledged to be broken, except as to the conveyance of the Kentucky lands. Fie had assigned Lee’s debt and Bull’s mortgage. There was no warranty of the amount of Bull’s debt; but if there was, it appears from the decree, that, on the day of the contract, it was equal to the estimated value, viz: $8,000. The only real question, therefore, in the cause, is as to the Kentucky land.

By the terms of the covenant, Lewis was bound to procure a proper conveyance of Kentucky land (part of a specified tract,) from Lang to Fairfax, to the value of $8,333 33 cents, at $3 per acre. This was, substantially, a covenant to procure a good title; for, if Lang had no title, his deed could pass nothing, and could not, therefore, be called a conveyance. And, in like manner, if his title was in any degree imperfect or incumbered, his conveyance would *be, to that degree, imperfect and unavailing to the grantee. Did the covenant on the part of Fitzhugh to procure a conveyance of the whole, merge or destroy the engagement of Lewis, to procure a conveyance of a part? I think not. We are bound so to construe every contract, that every word shall, if possible, have its effect. If the parties had intended that Fitzhugh’s engagement should annihilate that of Lewis, they would have said so expressly, or have omitted Lewis’s covenant altogether. They must have intended, that Lewis’s covenant should bind him in some way, and we are bound to construe it accordingly, unless there were such a total incompatibility between the covenants of Fitzhugh and Lewis, as that the one must, of necessity, destroy the other. I see no such incompatibility between the two covenants. I see no absurdity, in one man’s being bound for all, and another for part. Tf it had been found that Fairfax could not perform his contract with Fitzhugh, they might well have vacated their contract, and left that between Lewis and Fairfax in full force. Fairfax paid Lewis for a part, and Fitzhugh for the residue, of the land. Fitzhugh was, therefore, bound for part to Lewis, and for the residue to Fairfax; and Lewis was bound to Fairfax for the same part. There was no reason then, that Fitzhugh should not engage to procure a conveyance for all to Fairfax, partly on his account, and partly on account of Lewis. But, Fairfax might well desire^ to hold Lewis bound, notwithstanding Fitzhugh’s engagement, and the parties have modelled their contract accordingly.

If Fitzhugh had procured a conveyance according to his contract, it would have discharged I,ewis from all responsibility. But, would such act of Fitzhugh have discharged Lewis, because it excused Lewis from the performance of his covenant, by making it impossible for him to procure a conveyance of a part, in consequence of Lang’s having already conveyed a complete title to the whole, or because such an act by Fitzhugh would have been a strict ^performance of Lewis’s covenant, by himself, or by his procurement? It seems that the case turns upon this point. Lewis pleads that he has performed all the covenants, which, according to the true meaning of the contract, he was bound to perform. Perhaps he ought to have stated, in his plea, how he had performed. This, however, does not enter into the en-quiry, whether the evidence supports the issue. The plaintiff having taken issue on the plea, cannot object to any evidence which substantially supports the plea, because the plea is defective. If it really be so defective as not to be a bar to the plaintiff’s demand, he should have demurred to it, or, after the issue was found for the defendant, have moved for a repleader. This plea can only be supported by evidence which shews, that Lewis had performed his covenant, and not by evidence shewing that his non-performance was excused by the act of the plaintiff, or any other; or otherwise, the plaintiff would he surprised upon the trial.

I think that the evidence on the part of Lewis, that Fitzhugh had procured from Lang a proper conveyance for the whole of the land to Fairfax, was proof that Lewis had, in strictness, performed his covenant. His stipulation was not to convey, but to procure a conveyance, for a part of the land. Lewis, by means of his contract with Fitzhugh, procured him to undertake to procure; a conveyance from Lang. Without this procurement on the part of Lewis, Fitzhugh would not have undertaken to procure Lang’s conveyance to Fairfax, for that part of the land which he had sold to Lewis. The latter then procured Fitzhugh, to procure from Lang the conveyance to Fairfax, of so much of the land as Fitzhugh had sold to Lewis, and he to Fairfax, and qui fa.cit per alium facit per se. To that extent, Fitzhugh acted for and on behalf of Lewis; and although in doing so he was discharging' his obligation to Lewis, he was acting as between Lewis and Fairfax as Lewis’s agent. When Fitzhugh undertook to procure a conveyance of the whole, he undertook on *behalf of Lewis for that part, for which Lewis had received a consideration from Fairfax, and for himself as to the residue. If the contract between Fitzhugh and Lewis, and the latter and Fairfax, and between Fairfax and Fitz-hugh, had been distinct, and Lewis had assigned the obligation of Fitzhugh for procuring a conveyance of a part of the land to Lewis, to Fairfax, and Fitzhugh had then contracted to procure a conveyance of the whole to Fairfax, and had done so; I should say, without hesitation, that Lewis had performed -his covenant, and procured a conveyance of the stipulated portion of the land. He would have procured the conveyance through Fitzhugh, as his agent, or in performance of Fitz-hugh’s obligation, it is immaterial which; as it would, in either case, be done by his procurement. This is. the substantial effect; and I think, the just and literal construction of the contract I cannot think that the three contracts, being made jointly, can receive a different construction from that which they would have received, if made severally.

The proof in the cause is, that Lang did deliver a deed for the 19,200 acres, to> the agent of Fairfax: that this was forwarded to Fairfax, and received by him, and it does not appear that he has ever parted with it. It does not appear, that he ever informed any of the parties interested in the subject, that he was even dissatisfied with it. These facts amount to clear proof that he accepted it; and if not, a jury might have inferred that fact from those circumstances, and the plaintiff being the demurrant, it ought to be presumed. The circumstance of his stating to his agent, not that he rejected the deed, but that he was dissatisfied with it, is entitled to no consideration. Whatsoever title Lang had, is vested in him, and lost to the other parties; and his acceptance of. the deed is prima facie evidence, that the deed was a proper one and passed a good title. The only evidence, after this acceptance of the deed, competent to prove that the defendant had broken his covenant, was, that nothing passed by the deed; as to which, the onus *probandi lay upon him, and he was not precluded from exhibiting such evidence, by the want of a specification in the plea, of the manner in which the defendant insisted he had performed his covenant; since there was an averment in the declaration, that Lang had no' title, and if there had not been such an averment, such evidence was competent to repel the defence set up by the defendant. Upon the question of title, the plaintiff has exhibited no proof. It is however objected, that the deed had no covenant of general warranty by Lang. The deed was not the less effectual on that account for passing a perfect title, and if it did pass such a title, the covenant was performed; especially as Fairfax accepted an order upon Lang for the deed, which specified minutely the covenants which were required of him, and of which a general warranty was not one. It is said also, that the ‘dower of Mrs. Lang was not relinquished. But that does not appear. What was done, or even a privy examination by magistrates without any commission, may, for aught that can be judicially known to this Court, have bound the dower rights of Mrs. Lang; and I have already said, that the acceptance of the deed by Fairfax, was an admission that it was in all respects proper, until the contrary appears; and that the onus probandi rests upon him. He has the deed and does not produce it. The inference which a jury might make, in the absence of all evidence to the contrary, and which therefore the Court is bound to make, is, that the deed was a proper conveyance in form and in effect. If the title or the 'conveyance had been -objectionable, he should have rejected the deed, returned it to Lang, and given notice to the parties concerned. The consequence of his silence is, that the parties have been lulled into security by his conduct, until by the death of Lang, they are disabled from performing their covenants. A conveyance from Lang’s heirs would not be a performance; and Fairfax would not be bound to accept it, since it might not be so beneficial to him, as a conveyance from Lang. Their covenants might not be as valuable as *his, and the land might have descended to them, charged with the payment of the specialty debts of their ancestor.

I have not examined the question discussed at the bar, as to the supposed defect in the declaration, founded upon the idea that Lewis was not bound to procure the conveyance, until hastened by request; a question not now proper for this Court. Those errors, if they exist, might be cured by a verdict, if the issue on the part of the plaintiff was supported; and at all events, could only be urged upon a motion in arrest of judgment. If the evidence does support the issue on the part of the defendant, then there was no impediment to the final judgment pronounced by the Court below, in favor of the defendant; unless the issue was immaterial; in which case, a repleader ought to have been awarded. An issue is immaterial, when it is joined upon a point “which does not determine the right of the parties; so that the Court cannot know, for whom to give judgment, whether for the plaintiff or defendant.” Tn this case it is found, that the defendant did perform all the covenants which he was bound to perform. The plaintiff might, by demurrer, have compelled him to shew how he had performed them; but having taken issue upon this general plea, and that being found against him, it is a complete bar: For, no matter how he performed his covenants, if it appear that he has performed them. That determines the right in favor of the defendant, and there can be no uncertainty as to the proper judgment.

The evidence set out in the bills of exception, was properly rejected by the Court. The papers mentioned in the first and second exceptions, were the certificates of public officers, of facts appearing, as they say, upon the records of their offices. If those officers had been in Court, and testified on oath to the same facts which they certify, such evi-' deuce would have been inadmissible. The plaintiff should have produced duly authenticated and literal copies of the entries upon the records, which they refer to. This would have been better evidence than the statement of any one, *as to the effect of those entries. This case presents a striking proof of the necessity of adhering to the fundamental rule, that the best evidence which the nature of the case will admit of, shall be produced. These two officers, professing to certify as to. the same facts, differ in their statements, in circumstances which, in this case, are perhaps immaterial, yet in* other cases might be material. The rejection of the evidence mentioned in the two first exceptions, rendered that mentioned in the third, wholly irrelevant. The evidence mentioned in the fourth and fifth exceptions was so clearly irrelevant, as make it unnecessary to discuss the propriety of rejecting it. As to the sixth exception, the plaintiff cannot complain, as he himself withdrew the evidence, upon an intimation from the Court which was entirely proper.

1 think the judgment should be affirmed.

JUDGE COALTER.

These were two cases argued together; I shall first consider the appeal from the judgment in the suit of Lewis v. Fairfax.

Several objections have been taken to the declaration; but T think it would be improper for this Court to consider them, even should we decide that the issue on the part of the appellee is not supported by the evidence. The authority cited at the bar, Cort v. Birkbeck, 1 Doug. 218, 225, is conclusive on this point, and is in strict coincidence with the provisions of the act of Assembly constituting this Court. If we reverse, we must enter such judgment as the Court below ought to have entered; which would have been, to declare the law for the appellant, and award a writ of en-quiry.

It would not be proper, on a demurrer to evidence, to adjudge the law for the appellant, and then, no verdict being found, as in this case, to adjudge Ihe law for the ap-pellee on the declaration; because, there being no demurrer in law, a fatal defect in the declaration can only be taken advantage of, by a motion in arrest of judgment, after verdict. *It would be otherwise, had a conditional verdict been found; which is the usual, and perhaps, the most regular course. Many defects are cured by verdict; and even if we were of opinion, that the want of an averment of a demand of a conveyance for the Kentucky land, would be fatal, after verdict, yet we cannot consider the case now, as if a verdict had been found, any more than the Court below could. Nor can we say there will be no motion below to amend the pleadings on either side, or that such motion, after demurrer to evidence, would be improper; or that the appellant may not suffer a non-suit, before verdict found; no point of this kind being before us.

As to the merits: The appellee, after craving oyer, &c. pleads, that he has well and truly performed all and each of the covenants in the said covenant contained, which, according to the true intent and meaning thereof, he was bound to do and perform.

I shall throw out of my present consideration of the case, those breaches which relate to the assignments of Lee’s debt and Bull’s mortgage, as 1 think the issue is supported by the evidence in regard to them. As to the Kentucky land, the plea does not set out the kind of conveyance that was made, or by whom made or procured so as to enable the Court to judge whether it was or was not, a good performance, or an excuse for non-performance; but is in general terms as above. Whether this plea would have been sufficient to entitle the appellee to judgment, had there been a verdict for him, or should the Court think the issue tendered thereby, supported by the evidence, or whether, on such a plea, there ought to be judgment for the appellant, notwithstanding a verdict finding the issue against him, or a judgment against him on demurrer to the evidence, from the view I have taken of the case, I am not now called upon to decide. The first question to be considered is, whether the issue, formal or informal, material or immaterial, which is tendered by the plea, is supported by the evidence; and to decide this, we must first ascertain what the issue, so tendered, is.

*There are two modes, by which the appellee could be discharged from the appellant’s action on this covenant, and either of which, if properly pleaded and made out by evidence, would be a good bar. First, by procuring a proper conveyance from Lang, for so much of the Green River lauds as, at $2 per acre, would discharge $8,833 33, growing due to the appellant under the covenant. Secondly, he would be exonerated from causing a conveyance to be made for part of the tract, provided Fitzhugh should cause a proper conveyance to be made of the whole. He was not bound to wait' to see, whether he might possibly be discharged in this latter way, but had a right to procure a conveyance at once, for the part. It might have been, nay, it surely was, his interest to do this promptly; because, until done, he was. in jeopardy. Lang might convey the whole,' or a part, to some one else; he might, therefore, have conveyed a part of the tract, or forfeited a part, and his title have been divested, so that his deed for such part would operate nothing, and convey nothing; and should the appellee rely on a conveyance of the whole, through the medium of Fitzhugh, and that deed operate no conveyance as to part, it might not be a performance of which the appel-lee could avail himself, although it might convey as much as would amount to the sum aforesaid. For, it at present appears to me, though I give no decided opinion on that point, that he could not avail himself of a conveyance of the whole, unless the deed operated a conveyance of the whole tract. Which of these bars does he mean to set up by the plea, or does he mean both, and call he rely on both, or either at his pleasure?

If he means the latter, it cannot strictly be called a performance by the appellee, of that act which he was to do. or cause to be done, to wit, causing a conveyance to be made of part of the tract; but a discharge from his obligation to perform that, in consequence of a conveyance of the whole tract being procured by another. On the other hand, if the plea is to be understood as meaning the *per-forma'nce by the appellee of the act he was bound to perform, unless discharged therefrom by an act done by a third person, then evidence of an act done by such third person, would seem to me not to support the issue tendered.

True, if he had done the identical act which he was bound to do by another, as his agent; in other words, if his agent had procured Lang to convey the part he was bound to procure him to convey, what he had so done by another would be considered as done by himself; but that is not this case. The evidence only tends to prove, that Fitzhugh, not as his agent, but on his own account, and in discharge of a substantive agreement by himself, procured a conveyance of the whole, which, if effectual for the whole tract, and such a conveyance of the whole as he was to procure for the part, and was received and accepted, so as to make the deed operate by delivery, or was tendered, and was such a deed as ought to have been accepted under the contract, would exonerate the appellee from causing a conveyance of a part.

I think it would be going too far, under the utmost liberality of practice, admissible in regard to these general pleas, to say that evidence of both or either of these bars could be admitted under such plea. This liberality ought not to be sanctioned in a way calculated to produce surprise at the trial. It is not enough to say, that possibly in this case there was no such, surprise; we must look to what might happen under such a plea.

For instance: the appellant may never have accepted the deed procured by Fitz-hugh, so as to make it good by delivery, which I apprehend requires the assent of both parties; he may have returned it, and given both Fitzhugh and the appellee notice thereof, if indeed he was bound to give the appellee such notice, and the latter may have procured one for a part of the tract, which may, in like manner, have been objected to and returned: now, if, on such a plea as this, in its very terms setting out this performance to have been executed on the part of the appellee himself, *he could, on failure to prove that, exhibit proof also of the deed for the whole, procured by Fitzhugh, the appellant would very naturally be taken by surprise, and might not have his witnesses to prove his rejection of that deed.

There are various things that will excuse the non-performance of a covenant, and will be a good bar, if properly pleaded; but it cannot be contended, as a general proposition, that such things, if given in evidence under the general plea of covenants performed, though not objected to, the party not being obliged to object to impertinent evidence, will support the issue.

The case before us, it appears to me, only differs from general cases of this kind, in this; that here by a subsequent part of this agreement itself, it appears, that if a certain act is done by a third person, who covenants to do it, and which, as before said, the appellee was not bound to wait for such performance, nor the appellant either, who had a right to call on the ap-pellee at once for the performance on his part, such act, so done, would be an excuse for the non-performance by the appellee. I cannot perceive that such possible excuse, although it arises out of another contract contained in the same paper, exonerates the appellee from pleading it in this case, any more than in any other. It might have happened, either by a subse-sequent agreement or otherwise, that Fitz-hugh would be exonerated from his agreement to convey the whole,_ or that the appellant and appellee, having rescinded their agreement, he was to convey the part to the appellee, and the residue only to the appellant, and to which subsequent transaction the concurrence of all the parties was not necessary. This shews, that these contracts were distinct and independent of each other.

The propriety of this opinion may be further tested, by considering what would have been the notice of a proper plea, relying on this defence. The appellee would have set out the deed as one procured by Fitzhugh for the whole tract, under the second part of the contract, and as excusing *him for not procuring a similar deed for a part. But, if he had failed to prove that plea, could he, under it, have exhibited evidence that lie had himself procured a deed for a part, there being no plea to that effect; and would such evidence, though not objected to, support the issue joined? 1 think not. These two defences then are of distinct natures, and the question recurs, to which of them does this plea apply? I think it applies to an act to be done by the appel-lee himself, and not to an excuse for not doing it; and that there is consequently no proof whatever of the issue on his part.

This relieves me from the necessity of going into the evidence, or of considering what would be the effect of the deed al-ledged to have been made, without proof of a delivery; by which I mean, not a mere placing it in the hands of the grantee, but liis assent to the delivery; for, if that was necessary to make it a good deed to pass 'the title, and that did not take place, then the title remains ill the grantor or his heirs. Nor shall I inquire whether, if the title never passed, it was nevertheless such a deed as the appellant ought to have received; or if not, whether his failure to give notice, either to Fitzhugh or the ap-pellee, would estop him from saying that it was not such a tille as he was bound to receive.

T am also relieved from any minute consideration of the exceptions; though my present impression is, that the certificates in regard to the forfeiture and sale of the lands for the non-payment of taxes, in the form they were made out, were not proper evidence. Nor do L see the relevancy of the parol testimony mentioned in the last bills of exceptions. The opinion of the Court as to Bull’s contract, stated in one of the bills of exceptions, I think was correct. 1 have not considered whether the law of Kentucky has been duly authenticated; possibly it has. But the other testimony being rejected, it became irrelevant. Indeed these bills of exceptions are not before the Court, not being a part *of the record; nor can they be made such, unless by consent, or by proceeding in the manner prescribed by the act of Assembly.

As to the oiher case, that of Lewis v. Fairfax; whatever may be the law of England, growing out of the nature and perplexity of titles there, and of the usage of conveyancers consequent thereon, as to the delivery of abstracts, and the duty of the grantee to prepare the deed, I do not think it applies to this country, or that there is any such usage or practice to support it; but if there was, it is not alledged that any abstract was furnished, so as to enable the appellee to prepare a deed.

On the whole, I think the judgment first mentioned must be reversed; the law declared to be for the appellee as to the first two breaches assigned, the issue on his part being supported as to them; but that the law is for the appellant, as to the third breach, and a writ of enquiry of damages awarded as to that; and that in the other case, the judgment must be affirmed.

JUDGE BROOKE, concurred with the other Judges, that the judgment in Lewis v. Fairfax, should be affirmed; and concurred with JUDGE COALTER, that the judgment in Fairfax v. Lewis, should be reversed and a writ of enquiry of damages awarded as to the third breach, but affirmed as to the two first breaches.  