¶1It is sufficiently clear from the whole of the instrument taken together, and the circumstance of the plaintiff being then a married man, that the real intention of the parties was that it should'be considered merely as articles executory. Here the plaintiff was to do the first act, by making a good and sufficient title to the lands on or before the 1st May 1788. The stipulation that the deed should be made at the expense of the defendant does not vary the case. Moor, 645. 5 Co. 22. b. 10 Mod. 505. Further, the plaintiff has expressly laid his having made such a deed as the agreement obliged him to make, and having made such averment he is hound to prove it. The plea of covenants performed admits the execution of the instrument, and supersedes the necessity of other proof; but it does not admit that the adverse party has fully performed his agreement. It may be compared to the plea of payment, under which by our practice, Dall. 17, 260, mistake or want of consideration may be given in evidence, and the jury ought to presume every thing to have been paid, which in equity and good conscience ought to be paid. The exception therefore seems fatal to the plaintiff’s suit. 1 Salk. 112. 8 Mod. 40. 1 Stra. 569.
¶2The merits of the defence resting on the construction of a will, under which the plaintiff made title to the lands sold, it was after-wards agreed by the counsel, that a verdict should be taken for the plaintiff for 429i. 4s. 8d. damages, subject to the courts’ opinion, on a case to be stated in bank.