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*

*5602d. 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.