(After stating the case.) We are not informed of the reason why the agreement was, that, in one case, the defendant should execute such conveyance as Toot should devise and prepare, at his own expense ; and, in another case, the defendant took upon himself to make a good conveyance ; but so it is, and the parties had a right to make what agreement they pleased. The question then is, what is to be done, when the seller of a tract of land covenants, that, upon payment of the purchase money, he will convey a good title to the purchaser ? Who, in this case, is to prepare the deed of conveyance ? It would seem, that the seller, having agreed to convey, should prepare the deed of conveyance ; for this is the substance of the agreement. It is most convenient, likewise, and more agreeable to the natural order of things, that this should be done by the seller; because the title deeds are in his possession, and without them a conveyance cannot be drawn. Sugden’s Law of Vendors and Purchasers, 162, 163, was cited by the defendant’s counsel to shew, that in England; the conveyance is to be prepared and tendered by the purchaser. But Sugden founds his opinion on the modern practice of conveyances in England, and confesses, that formerly the conveyance was prepared by the seller. The change which has taken place in the practice, he attributes to the difficulties which surround titles of land, since the introduction of the mode of conveying founded on the statute of uses ; but, even now, it is incumbent on the seller to furnish an abstract of all the title papers, to be submitted to the purchaser’s counsel. Sugden confesses, also, that, by some recent dicta of eminent judges, it is incumbent on the seller to prepare and tender a conveyance. It is evident, however, that what may be a very convenient practice in England, may be very inconvenient here. We have not yet introduced, and it is unnecessary that we should introduce, the intricacies and expenses of English conveyancing, which have been much increased by the universal practice *231of marriage settlements. In the present situation of the country, there is no difficulty in preparing a deed of conveyance, and, therefore, no pretence for dispensing with what appears to be the plain meaning of the parties ; that is to say, that when the seller covenants, that he will convey the title to the purchaser, (without any mention of such conveyance as the purchaser shall devise, &c.) he shall himself prepare and tender the deed of conveyance. Great regard is due to custom, when it is well established. Whether or not it is the custom among us, that the purchaser shall pay the expense of drawing the deed, (the articles of agreement being silent on that point,) I will not affirm, nor is it necessary now to decide it; because, if the purchaser is to pay it, the deed must first be drawn, and he must have notice of the cost. But, in this case, there was no deed drawn. I am, therefore, of opinion, that the charge was right. It was not incumbent on the plaintiff, under the agreement and circumstances of the case, to tender a deed, or the expense of it, or to point out the covenants it should contain. '

The second exception to the charge is, that the jury were instructed, “ that it was not necessary for G. Toot, to make “ his election of the mill tract, in writing.” This exception is founded on the act for prevention of frauds and perjuries, (21st March, 1772,) by which it is enacted, that parol contracts for the conveyance of lands, shall have the force and effect of leases at will only, and shall not be taken, either on law or equity, to have any other, or greater force, or effect. I confess, I cannot perceive what bearing this act has on the case. The election of the mill tract, passed no estate; it was but notice to the defendant what estate he was to convey. This notice might as well be given by parol, as in writing ; because the estate was. to pass by the written conveyance, to be executed in consequence of the notice. In this action, the plaintiff does not claim the land agreed to be conveyed, but damages for not conveying according to the agreement. It appears to me, therefore, that there was no necessity to make the election, or to give notice of it, in writing.

The third exception is founded on the following proposition, submitted by the defendant’s counsel to the Court below ; “ the plaintiff in his declaration, having averred, that *232“ he had viewed the several tracts, and after such view made “ his choice, it must be proved; and the plaintiff having to- “ tally failed in such proof, cannot recover.” To this the president of the Court answered, “ it is not the province of “ the Court to say, whether a party has totally failed in the “ proof of particular facts. The Court cannot decide this “ point, as here stated, without deciding facts; nevertheless, “ we may state that the plaintiff selected the mill tract, after “ visiting it. More was not necessary.”

This question was improperly put to the Court. They were called on to say, that the plaintiff could not recover, because he had totally failed in his proof; and that was calling op them to decide facts. However, as they were called on, they answered, that, in their opinion, the plaintiff had not failed; and I think the defendant has no right to complain of the answer. Questions proposed by counsel, should be confined to matter of law, and, if facts are introduced, it should be hypothetically, leaving it to the jury to decide them.

There were two other exceptions to the charge of the Court, but they have both been relinquished. ' I am, therefore, of opinion, that the judgment should be affirmed.

Judgment affirmed.