
    Bellas against Hays.
    December.
    An agreement under the seal of the defendant, is evidence on the plea of non est factum, though the other contracting party is a third person whose authority as agent of the plaintiff is not shown.
    If an agent sign and seal a deed in his own name, it does not bind his principal, though the deed purposrts to be made between the the defendant and the principal by such agent: nor will any confirmation by such principal short of sealing the deed render him liable upon it.
    In such case as the one party is not bound, so neither is the other.
    It seems that a party would not be bound by the purchase of a patent right, who had supposed if to be valid, when in fact it was invalid: but such misconception cannot be taken advantage of by the defendant, where the equity is not spread on the record, but issue is taken on a want of consideration coupled with fraud.
    On an issue on the validity of a patent right, the Judge is bound to instruct the jury on the validity of conflicting patents, in a suit by a vendor against a vendee of such patent right, though all the parties interested in those patents are not before the Court.
    Where a vendor of a patent right agreed <£ to complete and perfect a conveyance by deeds duly executed and acknowledged, and as soon as practicable forwarded” to the vendee, the conveyance must be executed and acknowledged as well as forwarded, as soon as practicable after the agreement, and any acquiescence by the defendant, dispensing with such performance, must be specially set forth in the pleadings.
    Time, generally speaking, is not essential in equity : but considerable delay, where it is not accounted for, is considered as abandonment: or where it diminishes the value of the thing contracted for, is material.
    A conveyance of an exclusive right to one and his assigns, to fabricate and use a patented invention within a certain district, conveys the right to vend the same, without express words to that effect.
    Where the issue joined, was, whether the plaintiff had a patent right, dated 17th November, 1810, for ££ a steam still and water boiler,” evidence of a patent, dated 16th January, 1811, for££ ix water boiler and steam still,” is inadmissible.
    The Court are bound to instruct the jury, on points proposed by counsel on the trial, relevant to the issue, though they are not noticed in the argument! but they may regulate th^ practico otherwise, by rule of Court.
    In Error.
    Common covenant THIS was a writ of error to the Court of Fleas of Northampton county, in an action of brought by Hays against Bellas, in which there was a verdiet and judgment for the plaintiff for 900 dollars.
    The declaration recited, that by articles of agreement made the 8th July, 1814, between James Hays of Pennsylvania, of the one part, and Hugh Bellas of Sunbury, Pennsylvania, of the other, it was witnessed, that the plaintiff, for 1000 dollars, viz. 100 dollars paid at the execution of the said articles to Henry L. Clark, agent of the 100 dollars-on receiving the final patent deed, hereinafter ° * 7 * mentioned, and 800 dollars, in 18 months from the delivery of the said deed, with interest from the end of 12 of the said 18 months, did by the said agreement, grant, bargain, sell, assign, and transfer to the defendant, the patent right of Phares Bernard's steam still and water boiler, for the county heretofore Northumberlandin Pennsylvania, now Northum1 ** 1 
      berland, Union, and Columbia counties, to him the said defendant, his heirs, and assigns forever; and the said James did further agree by the same articles, to complete and per-feet the said conveyance by deeds duly executed and acknowledged, and as soon as practicable, forwarded to the said Hugh. And the said Hugh, did covenant by the said articles, upon receiving the said final and complete deed, to pay the said 100 dollars, and to execute a bond for the 800 dollars, payable in 18 months from the date, with interest after 12 of the said 18 months, &c. And the said James, in fact saith, that he did, on the 11th October, 1815, at, &c., complete and perfect the conveyance of the said patent right of Phares Bernard ’s steam still and water boiler, for the said counties, and did, as soon as practicable afterwards, viz., on the 11th October, 1815, tender the said deed, &c.; and though the plaintiff hath kept and performed all, &c. yet said defendant hath not paid the said 100 dollars, nor given the bond, for payment of the 800 dollars in 18 months from date of the deed, with interest after 12 months, &c.; and the defendant hath not kept his covenant, but hath broken the same, &c., to the plaintiff’s damage, 1200 dollars.
    The defendant craved oyer of the articles of agreement, which were as follows : “ This agreement between James Hays, esq. of Easton, Pennsylvania, by his agent Henry L. Clark, of the one part, and Hugh Bellas, of Sunbury, Pennsylvania, of the other part, witnesses, that the said James Hays, for the consideration of 1000 dollars, viz. 100 dollars-now paid to the said agent, 100 dollars payable on receiving the final patent deed, and 800 dollars to be paid in 18 months from the delivery of the patent deed aforesaid, with interest commencing at the end of 12 of the said 18 months ; he, the said James, has granted, bargained, sold, assigned, and transferred-, and does hereby grant, bargain, sell, assign, and transfer to the said Hugh, the patent right of Phares Bernard's steam still and water boiler, for the county heretofore Northumberland in Pennsylvania, now Northumberland, Union, and Columbia counties, to him the said Hugh, his heirs and assigns, for ever. And further the said James agrees to complete and perfect this conveyance by deeds duly executed and acknowledged, and as soon as practicable, forwarded to the said Hugh: and the said Hugh 
      covenants, upon receiving the said final and complete deed, to pay the second 100 dollars, and then to execute a good and sufficient bond to the said James Hays, for payment of the residuary 800 dollars, in 18 months from the date, with interest after 12 months, as aforesaid.
    HUGH BELLAS, [seal.]
    Witness, H. ALWARD. HENRT L. CLARK, [seal.]
    “ July 8th, 1814, the day of the execution of the preceding agreement, received from Hugh Bellas, the first payment therein mentioned, of one hundred dollars, for James Hays above mentioned.
    Witness, H. ALWARD. HENRY L. CLARK.”
    
    The defendant pleaded, non est factum, covenants performed, and payment, with leave to add, alter, amend, and expunge, and leave to give the special matter in evidence. He also specially pleaded four pleas, in substance as follows:
    1. That the plaintiff was not party to, or bound by the said agreement; Clark had no authority.
    2. That the defendant was induced to execute the said articles by fraud of the plaintiff and his agent Clark, in asserting that they had power to convey to the defendant, the patent right of Phares Bernard, mentioned in the said articles, when they had no such power.
    3. That the defendant executed the said articles by fraud of the plaintiff and his agent Clark, in asserting, that Bernard was the inventor, that the invention was new and useful, and that the right to it for Northumberland, Union, and Columbia, was vested in the plaintiff.
    
      i. That, generally, there was fraud on the part of the plaintiff and the said agent, inducing the defendant to execute the said articles : and no consideration or value was received by the defendant.
    
      Replications — to the first pleas, concluding to the country and issue.
    To the 1st special plea — that Clark had authority from Hays, and Hays was party to, and bound by the said articles; concluding to the country.
    2d. That Phares Bernard, on the 17th November, 1810, obtained letters patent for a new and useful improvement; being a steam still and water boiler, &c., that the right of it, by sundry legal assignments, was vested in the plaintiff, for the counties of Northumberland, Union, and Columbia; and the plaintiff and his said agent, on the 8th July, 1814, and before, had full power to grant and transfer the right to the defendant. No fraud; and prayed judgment.
    3d. That Bernard, on the 17th November, 1810, obtained letters patent for a new and useful improvement, being a steam still and water boiler, granting him, according to law, the right. That the said Pkares Bernard, was the inventor, and that the said invention was new and useful. That Bernard, by law, and letters patent, had duly obtained the full and exclusive right. That this, by sundry legal acts and conveyances, was vested in the plaintiff, and his said agent Clark, for the said three counties — and no fraud — and prayfejd judgment, &c.
    4th. That the defendant did receive, at the making of the said articles, a good and valuable consideration in law — and no fraud — concluding to the country.
    
      Rejoinders — Issues upon the 1st and 4th replications — ■ And specially negativing (in support of the 2d and 3d special pleas,) the 2d and 3d replications, and concluding to the country ; upon which issues were joined.
    Notice of the special matter was also given.
    On the trial, the plaintiff gave in evidence an exemplification of letters patent, to Phares Bernard,- for his steam still and water boiler, with a specification, dated 7th November, 1810, and conveyances from Bernard to Stinson Demand on the 7th September, 1812, and from Demand to the plaintiff, on the 12th December, 1812. He also proved^ that he had, under the articles of agreement, transmitted to the defendant, a deed, dated 23d July, 1814, which the defendant returned, because it did not properly specify the three counties of Northumberland, Union, and Columbia. On the 11th October, 1815, the plaintiff tendered to the defendant, another deed, dated on that day, reciting the conveyances above mentioned, and correcting the error in the former deed, but the defendant refused to accept it. This deed conveyed to the defendant, his executors, administrators, and as'signs, the exclusive right to use the steam still and water boiler,- in the three counties of Northumberland, Union, and Columbia, but did not convey the right to vend the same. The writ issued against the defendant in this case, on the 11th October, 1815, immediately after the tender and refusal of the last deed. It appeared, that the defendant had set up stills in January, 1814, on Bernard's plan, and used them up to the time of the trial, but was then about relinquishing them.
    The defendant, in support of his pleas, and under the notice of special matter, gave evidence to shew, that the plaintiff and Clark, had represented the plaintiff’s invention as new and useful, whereas in fact it was neither. He produced an exemplification of letters patent, issued July 8th 1803, to Samuel Brown, Edward West, and Thomas West, for an improvement in distillation, by the application of steam, in wooden and other stills; the specification of which, they contended, embraced the principles of Bernard’s alleged invention, and that they were used in the summer of 1814, in erecting stills in Columbia county by a person who threatened the defendant to bring suit against those using the invention under Bernard. It was proved by a certificate from the office of the Secretary of State of the United States, that the issuing of letters patent to Bernard, was at first objected to by Dr. Thornton, on account of their interference with Brown &? Wests' patent; and that an indorsement to that effect appeared on Bernard's papers at Washington, on which he applied for a patent. The defendant also called a number of witnesses, to prove that Bernard's specification was imperfect and impracticable: that stills had been set up under his instructions by a number of persons, and were found to be more expensive and less productive than the ordinary ones; dangerous in their operation, and yielding spirit of a bad taste; on account of which, they had been generally abandoned after trial.
    In the course of the trial, bills of exceptions were taken by the defendant, to evidence offered by the plaintiff, on the following points.
    1. The articles of agreement of the 18th July, 1814, the admission of which in evidence, was objected to by the defendant, on the ground, that the plaintiff was no party to the agreement, and that no legal authority had been shewn from him to Clark.
    
    ^he deed from the plaintiff to the defendant, dated the 11th October, 1815, which the defendant objected to, because the alienations therein recited, had not been recorded in the office of the Secretary of State of the United States.
    
    3. The exemplification of letters patent to Phares Bernard, of the 16th January, 1811, for a water boiler and steam still, which was objected to as differing from the letters patent stated in the plaintiff’s replication.
    After the conclusion of the arguments of the counsel, as the Court below were about to charge the jury, the counsel for the defendant submitted eight propositions to the Court, on which they requested them to charge the jui-y. But the Court decided, that they would not charge the jury upon any point not made in the argument.
    The Court then charged the jury among other things, ás follows.
    The action is on a contract, dated 8th July, 1814, and that contract is the great guide in the determination of the cause. The defendant’s counsel say that this contract is not binding, because the defendant is not entitled to an action of covenant upon it, against the plaintiff. The action can be sustained against the defendant. The contract is signed and sealed by him. If Hays had not performed his part of the agreement, it is possible that there might be some difficulty in an action against him. The defendant, however, might resort to Clark, who has signed and sealed the agreement, and under certain circumstances, he might bring an action against Hays. I am clearly of opinion, the action upon the agreement can be sustained by the plaintiff against the defendant.
    The defendant’s counsel allege, that there was no consideration. A sufficient consideration is stated in the agreement. It is true, that a suppression of truth, or suggestion of falsehood, will annul any contract. There has been much evidence given upon this subject.
    If you think the defendant was cheated, the action cannot be sustained.
    
      Much has been said about the patent to Samuel Brown, Tdxvard West, and Thomas West, prior to P hares Bernard’s. The jury will take this into consideration. It is a circumstance to shew that the defendant was cheated. A certificate has been produced from the office of the Secretary of State of the United States, of an indorsement upon Phares Bernard’s patent, referring to Broxvn Wests’ patent. It appears that Mr. Bellas carried on his distillery for a number of years, and no suit was brought against him for infringing Broxvn Wests’ patent. It is true, he was notified of their claim.
    If you think the defendant was deceived by the representations of Clark, the fraud will protect the defendant from the payment of any damages in this case.
    A man may, if he pleases, buy an imperfect right, and if he is not imposed upon, but buys with knowledge of the imperfection, he shall in law be held to the performance of his contract.
    Much has been said, that the deed was not transmitted by the plaintiff to the defendant, in a reasonable time after the execution of the article. By the agreement, Bellas was to pay one hundred dollars at the execution of the agreement, which he did. He was to receive a deed as soon as practicable, upon which he was to pay 100 dollars more, and give his bond for the residue. A deed, dated 23d July, 1814, was transmitted to the defendant. The defendant’s letter to Clark, only finds fault with this deed for its defect as to the tract of country. This deed is only for Northumberland county; and that county had previously been divided into Northumberland, Union, and Columbia. The other deed, tendered shortly before the beginning of this suit, mentions all three counties. If the deed was not transmitted by the plaintiff to the defendant in practicable time, the jury will say so; it is for them to say.
    As to the objection, that the last deed does not convey the right of vending to others to be used ; I think this conveyance does substantially transfer the right contracted for in the agreement. In the agreement, nothing is said of the right of vending to others to be used. But it is for the transfer of the patent right for that district of country, and the deed embraces all contemplated in that agreement. The first deed was the same as the second, exc^gt. as to Union 
      and Columbia counties; and the defendant.only complained of that defect in it.
    
      There are two points for the jury to consider.
    lst- ^as ^e^as deceived by the plaintiff or his agent — if he was, there is an end to the action. If not,
    2d. Were the two conveyances of the 23d July, 1814, and 11th October, 1815, a performance of the agreement?
    The Court leave the fact of the times of the tendering the deed, and the issuing the writ in this case, to the jury.
    It would not be proper for the Court in the absence of tho parties, to decide on the patent rights.
    The defendant is not in this action, entitled to recover back the 100 dollars he paid at the time of the execution of the articles of agreement. He may proceed for that in his action in Columbia county.
    
      Scott and Binney, for the plaintiff in error.
    1. The declaration is defective.' The averment is, that the deed was forwarded as soon as practicable after it was made, not that it was forwarded as soon as practicable after the agreement. At the time of the contract, but ten years of the patent were unexpired, and the deed was not made for fourteen months afterwards: so that this part of the time was lost by the defendant. The contract in respect to the time mentioned in the deed,, evidently had reference to the whole subject of making, executing, and forwarding. Here the performance as alleged, differs in terms as well as in substance from the contract. The acts to be done by the plaintiff formed a condition precedent, without the due performance of which, he cannot maintain his action. 2 Doug. 679. 690. 1 Salk. 171. 1 Saund. 228.
    2. The articles of agreement ought not to have been admitted in evidence, until an authority was shewn from Hays to Clark. Such authority must be by deed. 1 Bac. Ab. (Wils. ed.) 314. 3 Bac. Ab. 167. Cooper v. Rankin. 12 Mass. Rep. 240. 3 Vin. 125. Moore, 191. But a further objection is, that if there were such an authority, it was not executed. The writing was not signed by Clark, as agent or attorney; nor was the name of the principal used. Comb’s case.
      
       2 Ld. Raym. 1418. 2 Stra. 705. 1 Bac. Ab. 
      319. The articles were not evidence on the plea of non est factum. They were declared on as the deed of both parties, when they were not the plaintiff’s deed. Neither did they support the issue on the replication to the first special plea, that Clark had authority from Hays, and Hays was party to, and bound by the articles.
    3. The deed of the 11th October, 1815, did not convey to the defendant that full right to which he was entitled by the agreement. It was merely for the right to use, but not for the right to vend the invention in the three counties ; which was a material omission. The conveyance to the defendant and his assigns, is not sufficient. If he assigns, he divests himself of the right ¡ whereas he ought to have the privilege of vending to others, and retaining the use also to himself. Godbolt, 17 Co. Lit. 150. The act of Congress, distinguishes between making, using, and vending, and imposes separate penalties on each. Suppose the grantor had chosen to restrict the right of vending, can he not do so ? Then his not granting it, is tantamount to a reservation or restriction.
    4. The exemplification of the patent to Bernard, of the 16th January, 1811, was irrevelant to the issue, and a surprise upon the defendant, and ought not to have been permitted to be read. The patent put in issue, was that dated 7th November, 1810, for a steam still and water boiler. But this was dated at a different day and year, and was for a water boiler and steam still.
    5. There was error in the Court’s refusing to charge on eight points stated by the defendant’s counsel, because they were not made in argument.
    6. The charge is erroneous. Failure of consideration was an important item in the defence, yet the Court withdrew it from the consideration of the jury, and confined their attention to the question of fraud.
    The jury were told, the consideration on the face of the deed was sufficient; whereas they ought to have been instructed, that they were to take it into view upon the evidence. Steinhauer v. Whitman.
      
       In Bailey v. Fairplay, it is held to be error, if the Judge state only part of the law, and is silent as to the rest.
    
      
      7. The not tendering a proper deed for so long a time, was a waver by the plaintiff of the agreement; and the Court ought to have so instructed the jury. What was the construction of the words, “ as soon as practicable,” ought to have been decided by the Court; whereas they gave no construction of them, but left their meaning to the jury. 1 Bac. Ab. (Wils. Ed.) 109. 3 Johns. 64, 65. Co. Lit. 56. b. 3 Yeates, 13.
    8. The two points stated by the Court as the result of the whole, excluded other important points.
    9. The facts as to the tender, and commencement of the suit, were left to the jury without instruction as to the result, if they should think the suit was commenced too soon. •The defendant ought to have had a day, or at least a reasonable time to perform the act.
    
      J. R. Ingersoll, contra.
    1. The tender of the deed was within the time stipulated. The articles only require, that it should be forwarded as soon as practicable after it was made; and it was alleged and proved to have been tendered on the same day it was executed. Time is an immaterial circumstance in equity. Gibson v. Patterson.
      
       The delay was a loss to the plaintiff; but if this were a defect, it is cured by the verdict.
    2. The articles of agreement were signed by the defendant, and were therefore at all events evidence, on the plea of non est factum. The defendant and plaintiff both treated Clark as an authorised agent, and were estopped to say, that Clark was not an agent. The plaintiff may wave the want of a written power from himself to Clark. Here the' party whose name is alleged to have been used without authority, does not take the exception. Ewing v. Tees.
      
    
    3. The deed of the 11th October, 1815, conveyed the patent right for the three counties, with the exclusive right of making, and using the same to the defendant and his assigns; •which of course comprehended fully the right to vend. The defendant had agreed before to accept a deed similar in this respect.
    4. The patent of January 16th, 1811, was evidence to shew a title in the plaintiff, and a full right to convey what he agreed to convey.
    
      5. The Court is not bound to charge the jury on points suddenly proposed on the close of a trial, without opportunity of argument or reflection.
    6. Want of consideration is not put in issue by the pleadings : the whole matter rested on the allegation of fraud. The sale of an article, does not imply a warranty by the vendor, of its usefulness or goodness, unless there be an express undertaking.
    7. The question of the tender being in a practicable time, was proper to be left to the jury. It is a mixed question of law and of fact.
    8. As to the Court restricting the jury to two points, they charged on other points.
    9. This admits of the same answer ás to the 7th point.
    
      
      
         2 Binn. 613.
      
    
    
      
      
         9 Co. 75.
      
    
    
      
       1 Serg. & Rawle, 438.
      
    
    
      
       6 Binn. 453.
    
    
      
      
         1 Atk. 12.
      
    
    
      
      
        ) 1 Binn. 450.
    
   The opinion of the Court was delivered by

Gibson J.

Some of the errors assigned in respect of the

charge, involve principles exactly the same as some which arise on the bills of exceptions to evidence. Without examining these in detail, I shall consider the principles of law on which they depend ; and in doing so, I shall inquire whether the contract was originally binding on Bellas, and whether if it were, Hays could support this suit, under all the circumstances of the case, and particularly under the present form of the declaration. I will then consider one or two exceptions that belong to no particular class.

To the original obligatory effect of the contract, it is objected, that it does not appear that Clark had authority; and even if he had, that he ought to have sealed the instrument, not in his own name, but as the attorney of Hays; without which the latter could not be bound, and consequently that neither is bound.

Every authority of this kind, must be by deed, that it may appear, whether the attorney had a valid commission, and whether it were duly pursued. Co. Lit. 48. b. There wag no evidence of the existence of a letter of attorney to Clark, and what operation the want of it ought to have on the obligatory effect of the contract, was directly made a question for the opinion of the Court. On this ground then, it is plain, Hays was not bound by the contract; but I take it, the articles were nevertheless admissible evidence on the issue of non est factum.s for being in any event the deed of Bellas, they went to support the issue on the part of the plaintiff, who, being bound to no particular order of proof, might, if he pleased, give the articles of agreement in evidence first, and offer the letter of attorney afterwards. The first bill of exceptions is, therefore, not sustained. Then as to the other ground; the article of agreement purports, on its face, to be made between Hays, the plaintiff, by his agent Clark, and the defendant; but it is signed and sealed by the two last only, and not by Hays. It is clear beyond dispute, this was not a good execution of the authority, if any existed. Comb’s case, 9 Rep. 76. b, is express, that the act must be done in the name of the principal, and sealing being an essential part of the execution of a deed, the seal of the person giving the authority must be affixed. In 3 Vin. Ab. Authority, F. pl. 4, there is a case exactly like the present. The king authorised a certain surveyor to make leases, who executed the power by deeds, beginning as in the case before us, as if the principal were a party, and concluding, “ in witness whereof the said surveyor hath put his sealand it was held, he ought to have put, not his own seal merely, but that of the king. But the counsel for the plaintiff, relies on evidence of acts of confirmation, by both parties treating these articles as obligatory on Hays. But can any confirmation short of putting his seal to it, make the writing the deed of Hays, so as to give Bellas a remedy at law on it as such ? — An, imperfect specialty contract may be so ratified by parol, as to give an action of assumpsits but here, mutuality of remedy on the same instrument is the essential matter. On both grounds then, I think Hays was not bound. It does not follow however, that in every case, neither will be bound if both are not: for covenant may be maintained on a deed poll. The true distinction appears to be taken in Northcott v. Underhill, 1 Ld. Raym. 388, where it is laid down, that relative covenants are void, whenever the matters to which they relate, and on which they depend, cannot by the deed take effect. It was the case of a mortgage, with a covenant in the same instrument to pay the money, and the deed for want of enrolment being insufficient to pass an estate in the land, it was argued the covenant was therefore void; but as it was separate and independent, it was held, it might well stand by itself. But in Fromentin v. Small, 2 Ld. Raym. 1418, the case was very like the present. The plaintiff was the attorney of James Fromentin, and in his name, and as his attorney, demised a house to the defendant, who covenanted to pay the rent. In an action of covenant, in which non payment of the rent was assigned as a breach, there was a demurrer; and it was admitted by counsel, and denied -by nobody, that Jumes Fromentin the principal, could not have maintained covenant on the lease, because he was no party to the deed; and it was adjudged by the Court, the action would not lie even in the name of the attorney, who was a party, because the lease being void, the covenant to pay the rent, was also void. Where however, the covenants are independent, either party may sue without regard to the validity of the covenants on the part of the other. Now in the case under consideration, payment of the purchase money was entirely dependant on the conveyance of the right; insomuch, that the latter was expressly made a condition precedent. By the articles, Hays was bound to nothing, and Bellas ought not to be bound or discharged as Hays might choose to consider him. As then the articles of agreement created no responsibility, and were altogether inoperative, the direction of the Court was, in this particular, wrong, and the judgment must be reversed.'

The point just disposed of being decisive against the plaintiff’s right, it would be unnecessary to pursue -the inquiry further, were it not that an act of assembly renders it the duty of this Court, to pronounce an opinion- on every point decided by the -Court below: The defendant contends the contract was void on-the ground of want of consideration also, because he gave evidence to affect the" validity of the patent right contracted for, and also to shew the invention was not valuable. Of this the J udge took no further notice, than as it might be evidence of actualfraud, on which, alone, he, as to this part of the cause, put the inquiry to the jury ; and this he did without deciding on the validity of the respective patents. I do not consider the evidence so important on the ground of want of consideration as misconception by the parties, of the existence of a fact: although I agree, that where the Consideration is an equivalent for the obligation which the other party incurs, failure of it is -a good ground for relief. But I choose to consider the case on the ground of mistake, which is perhaps not very dif. ferent from want of consideration. At first view there appears to be some contradiction in the cases on the subject- several, mistake only, without suppression of the truth or suggestion of a falsehood, has been held insufficient to set aside the agreement, as in Can v. Can, 1 P. Wms. 723. So in Pullen v.Ready, 2 Atk. 587, Lord Hardwicke says, “ there is nothing more mischievous than for this Court to decree a forfeiture after an agreement, in which, if there is any mistake, it is the mistake of all the parties to the articles, and no one of them is more under an imposition than the others.” It will be found, however, this doctrine is applicable only to cases where the right or thing, which is the subject of the contract, is evidently of itself doubtful, which is a circumstance always sufficient to support an agreement, if no unfair advantage be taken in other respects. In such case, the assent of the parties to treat on the subject as it then stood being complete and full, they proceed on an evident supposition, that the fact which is the cause of the agreement is doubtful, and each is understood to take on himself the risk of its turning out in a way favourable to him. On this principle, every wager and every contract pf insurance depend; and without it there could be no such thing as a compromise of a doubtful right. Where a párticular fact is known to he doubtful, or supposed to be so, if the party to be benefited neglect to secure himself by a covenant, he will be without remedy, if it turn out contrary to his expectations, for he will be considered as having paid his money for the benefit of a chance. It would seem to me, that whether the invention which is the subject of the plaintiff’s patent were valuable or not, was in its nature doubtful, and that the defendant took the risk of that matter on himself ; but the validity of the right, on the ground of originality of invention, is another matter of which I will spéak hereafter. The cases of this kind, to be found in the books mostly relate to agreements, the intention of which was to settle family disputes, which is a favourite object with courts of chancery; yet even there it is held, the parties must be acquainted with their rights as far as they can bt ascertained, or at least with the nature and extent of the information that can be obtained respecting them, which in the absence of fraud is going pretty far. Pusey v. Disbouverie, 3 P, Wms. 316. There is however another class of cases where an agreement entered into on an erroneous presumption by one of the parties of the existence of a fact, is held to be as to him of no force, for he gave his assent to the agreement, not absolutely, but on conditions which are not verified by the event: and it will be immaterial, whether all parties were equally ignorant or not; for if there was any concealment of a fact within the knowledge of the opposite party, that of itself constitutes fraud, which is a distinct ground of relief. Thus in Cocking v. Pratt , 1 Ves. 400, an intestate’s widow and daughter entered into an agreement as to the personal estate: the daughter married and died: the husband brought a bill to be relieved against the agreement, on the ground of mistake on the part of his wife as to the value of her share. Sir John Strange, in the absence of the chancellor, observed, that whether there had been suppressio veri, was not clear on the evidence, but that there was another foundation to interpose, to wit, that it afterwards appeared the personal estate was greater than the daughter supposed, and that the husband would be permitted to come into chancery to take advantage of her want of knowledge. So in Lansdown v. Lansdown, Mosely, 364, where two brothers claiming an estate applied to a country schoolmaster, who, (as was to be expected,) ignorantly gave it in favour of the younger, because he had read in the clerks’ remembrancer that lands cannot ascend, and thereupon the eldest having consented to divide the land, saying he would rather do so than go to law even if he had the right, and having created deeds of lease and release, these were decreed to be delivered up, although there was riothing like concealment, or exclusive knowledge of a fact or any thing else, imputable to any one. There are many other cases to the same purpose. Turner v. Turner, 2 Ch. Rep. 11. Bingham v. Bingham, 1 Ves. 126. Gee v. Spencer, 1 Vern. 32, and Luxford's case there cited. If then the patent right of Bernard were invalid, there can be little doubt the defendant would not be bound by the contract; for it is out of all reason to suppose he purchased the right under any other notion than that of its being a valid one. Yet I confess I cannot see how, on the present state of the pleadings, he could take advantage of the defect; for, according to the decision of this Court in Jordan v. Cooper, 3 Serg. & Rawle, 564, an equitable ground of relief must be put on the record, and instead of pleading ignorance and misconception of the fact, he has put his defence by the special pleas, on want of consideration coupled with actual fraud, which is a totally different ground. It cannot be said there was no consideration ; for the very sealing of a deed, is in equity as well as at law, evidence of consideration, and although equity will sometimes postpone the payment of a voluntary bond to other debts, yet as between the parties it will not relieve the obligor from the payment of his obligation even where there is no pretence of consideration, unless he can affect the obligee by direct evidence of-fraud. Wright v. Moore, 1 Ch. Ca. 157. The issue., then, was fraud or not, and did not embrace the ground of mere mistake. In putting the case, therefore, to, the jury on the point raised by the pleadings, the Court did very right. Still, however, the Judge erred in refusing to instruct the jury on the subject of the relative validity of the conflicting patent rights; for that w.as a consideration as necessary to settle the question of fraud, as that of ignorance and mistake. The reason given, that the patentees were not parties in Court is entitled to no weight.

But taking these matters to be in favour of the plaintiff, the question would still occur,has he entitled himself to this suit by executing and tendering a conveyance of the right, according to the true intent and meaning of the articles ? Per- ■ formance of his part of the agreement within a reasonable time is expressly made a condition precedent. It was the obvious meaning of the parties, that the final deed was to be executed and transmitted within a reasonable time from the date of the articles. “ The said James agrees to complete and perfect the said conveyance by deeds duly executed and acknowledged, and as soon as practicable forward to the said Hugh.” I pay not the least regard to juxtaposition. As the time "the patent had to run was hourly expiring, it was an important object to the defendant to obtain the conveyance as soon as possible : common sense therefore requires, that the words “ as soon as practicable” should, notwithstanding their relative position in the sentence, be applied as well to the execution as to the transmission of the deed. That time should not unnecessarily elapse between these two periods only, could not be particularly important, but that both should , arrive as early as possible, was essential to the full enjoyment of the property to be acquired, the value of which was daily decreasing. The averment in the declaration, that the plaintiff executed a conveyance on a certain day, and transmitted it as soon as practicable after-wards, is consequently ill: it should be, that he both executed, and transmitted, as soon as practicable after the execution of the articles ; or, if there were special circumstances equivalent, in equity, to strict performance at the stipulated time, such, for instance, as acquiescence by the defendant, these ought to have been specially set out, to give the opposite party an opportunity to traverse or demur. This not having been done, the defect is not helped by the verdict: for by the express terms of the contract, the plaintiff could not, before performance on his own part, call on the defendant for any thing; and the omission of a part of the title is a defect that nothing can cure. The declaration was, doubtless, drawn in the present form to meet the truth of the case, which would, I am inclined to think, preclude the plaintiff from recovering, under any form of pleading. ' Generally speaking, time is not, in equity, of the essence of the contract: but would chancery under the circumstances of this case dispense with strict performance ? That would pretty much depend, as to one ground of defence, upon whether the plaintiff had practised any considerable delay. An interval of fifteen months, between the execution of the articles and the tender of the deed, would certainly require very particular circumstances to justify it. The case of Gibson v. Patterson, 1 Atk. 12, in which Lord Hardwicke is made to treat time as altogether immaterial, is not supported by -later decisions; and it is now fully established that considerable delay, without sufficient reason to account for it, will be considered satisfactory evidence of abandonment. But there are other instances, independent of abandonment, where time is essential: for if after the period at which the plaintiff ought to have performed his part, circumstances occur which materially alter the value of the property, or diminish the benefit of the contract, equity will not interpose. In the case before us, every hour decreased the value of the property, and rendered the consummation of the agreement an object of less interest to the defendant. Could the plaintiff on the ground of a compensation, tender a deed on the last day of the patented term, and maintain a suit ?. The pre~ sent case differs from that only in degree. I have no doubt equity would hold jurisdiction of this contract, for the purpose of executing it specifically, although it relates to a personal chattel; and this as well on account of the inadequate nature of the satisfaction to be obtained at law, as that of the agreement itself being incomplete, and intended to be perfected by a subsequent agreement: but in giving a plaintiff, in an action at law, all the benefit arising from equitable considerations that he could obtain in chancery, we must take care that we do not outrun the precedents in the chancery books. On the case disclosed by the evidence, therefore, I am of opinion the plaintiff would not be entitled to recover. As to the correctness of the opinion of the Court on the question, whether the deed tendered contained a power to vend, it is unnecessary to decide. That was a question that did not necessarily arise; for the plaintiff having averred, though defectively, performance of all necessary covenants on his part, without such averment being traversed by the other side, that matter, as well as the intervening of a reasonable time between the tender and the commencement of the suit, (if time were necessary to enable the defendant to perform the covenants on his part, which I am far from being disposed to grant,) was admitted by the pleadings. I have no doubt, however, that a special grant of the right of vending, over and above that of making and using, was unnecessary. It is true, the act of Congress directs, that the grant by the letters patent shall include the right of “ making, constructing, using, and vending to others to he used;” and hence it is inferred, the right of vending is separate from that of making and using. But the exclusive right of fabricating and using necessarily comprises the whole beneficial interest; and the right of parting with it or any part of it is incident to the right of property. The latter was specially secured by the act of Congress ex majori cautela, to obviate all difficulty on the subject. Here the contract contemplated the exclusive right within a certain district, so as to give the defendant the -whole interest: he could therefore dispose of it at his pleasure. Who could call him to account? The case would be different, if he were, by the articles, to be admitted only to a participation in the right; for he could in that case, without a special authority, transfer only his own individual right of making and using, and could not while he retained '.t, introduce another person under it; and the right to assign at all being personal, might, by an express stipulation, even be restrained. Whether a condition not to assign would, in a conveyance of the whole right, though for a district, be void, on the ground of public policy, it is unnecessary to decide, because the deed tendered contains no such restraint; but admitting it might, as contended, be done, still the want of an express power to convey, is very different from an express restraint.

Two miscellaneous, exceptions of'minor importance remain : An exemplification of a patent to Bernard, dated 16th January, 1811, was offered and admitted after it was objected to*. The defendant had pleaded specially, that the patent right which the plaintiff contracted to convey to him was invalid. To this the plaintiff replied, that Bernard had obtained letters patent, dated 17th November, 1810, for a new and useful improvement, being “a steam stilL and water boiler,” and that the right by sundry conveyances was vested in him, and that this was what he contracted to convey. Bernard had in fact obtained two patents, differing not only in date, but also in the name or style of the improvement patented; one being called a steam still and water boiler, and the other a water boiler and steam still. This difference, though trivial, nevertheless served, along with that between the dates, to shew that the patent offered was not the one the validity of which was put in issue. On this state of the pleadings, which seems to have not been adverted to by the Court, I cannot see what the evidence had to do with the question. As it was in every shape irrelevant, it tended to confuse the jury, and was improperly admitted.

After the conclusion of the arguments of counsel the de-> fendant submitted eight points, on which he prayed the Court to instruct the jury, but this the Court refused, because those points had not been made in the argument. A party proposing a question to the Court may, if he thinks proper, wave the benefit of argument; but it is fair, not only towards the opposite counsel but the Court, that the former have an opportunity of being heard before a decision takes place. This as a matter of practice, every Court has power to direct by an appropriate rule ; but, without a rule, I very much doubt their right to refuse to decide. They may call on the opposite party to speak to the question proposed; ■ but they are bound to instruct the jury, if the questions are not entirely irrelevant to the cause.

The judgment must be reversed ; but as the declaration is defective, and it besides appears that the plaintiff cannot in any event recover, the Court will not award a venire facias de novo.

Judgment reversed.  