
    Cassell against Cooke.
    tract or wrong Where a proposed alteration of a declaration would introduce an entirely new cause of action, it cannot be. permitted s but where it merely lays in a different manner, which the plaintiff thinks will best correspond with the nature of his complaint, and'wilh his proof, it may be allowed after the jury is sworn.
    Where covenants are^mutual and concomitant, one party cannot oall upon the other to perform his part of the contract, without having actually performed or tendered performance of his own.
    Articles of agreement were entered into between the plaintiff and the defendant, by which the former agreed to sell a tract of land to the latter, who was to pay one-third of the purchase money on a certain day, on which a good title was to he given to him free from all incumbrances, and the remaining two.thirds by instalments. The defendant went into possession, but the first payment not being completed on the day agreed upon, no conveyance was made or tendered by the plaintiff. The defendant subsequently made several payments on account of the first instalment, which wa’s never fully paid. Sometime afterwards, the plaintiff tendered a deed to the defendant, who refused to accept it, on the ground that it was too late. Held, that in an action for the purchase money, the defendant coujd not give in evidence damages sustained by him, in consequence of the plaintiff’s being unable or unwillingto give him a title at the day.
    After declaring in an introductory clause, his intention of bequeathing ccwhat worldly estate it had pleased God to bestow upon him,” a testator devised to his wife, the benefit and full privilege of the plantation he then lived on, until his son should arrive at the age of twenty-one years, and if his wife remained a widow until his son was of age, she was to have half of his plantation, with all the benefit of it during her life or widowhood. Ke then devised to his son ccthe plantation and land he lived on, as soon as he should arrive at the age of twenty-one years, if his wife should then be married or dead, but if she continued his widow, each to enjoy half as above.55 Then came a bequest to his two daughters of the residue of his personal estate, to be equally divided between them, '‘and if either of them be removed by death before they be of age, the other to enjoy the whole ; or if my son G. &. be removed by death before he be of age, his part to fall to my daughtersThe soon took a fee.
    Where legacies have been charged upon land, they may, in proof of performance of a covenant to convey free from incumbrance, be shewn to have been paid, by receipts of the legatees or any other written evidence. A discharge by deed need not be produced.
    If a mesne conveyance, forming part of the chain of title, be mislaid by the vendor of land, it seems that the vendee who has executed the contract in part by taking possession, cannot object to the title on that account, as the defect may be supplied by a bill inperpetuamreimemonam / still less can he object to it, when he has never, by the performance of his own covenants, put himself in a situation to demand the title papers, and the lost deed has been found, before the title was tendered by the vendor.
    An acknowledgment of a deed by husband and wife, in Washington county, Maryland, in which they resided, before A. B. & C D. who were stated in a certificate of the Clerk of the Court of the county, under his bfficial seal, to be justices of the peace of that county, without stating that they were the chief officers of the place, or any proof being given that they were so, is not good within the Act of 24th February, 1770.
    If the Court, after laying down the law correctly to the jury, add,<e These positions are all true as general positions. You are to decide how far they are applicable under the evidence in this cause,55 it is not error#
    In Error.
    THE defendant in error, David Cooke, brought an action of debt, against Henry Cassell, the plaintiff in error, in the Com-, mon Pleas of Lancaster county, on certain articles of agreement, entered into between them, on the 10th August, 1813.
    By these articles it was agreed, that Cooke should sell to Cassell an estate in fee simple, therein described, for which Cassell covenanted to pay 325 dollars per acre, in the following manner — viz. One third of the purchase money on the IOth April, 1814 ; one third on the 10th April, 1815, and the remaining one third on the 10th April, 1816, without interest. Cooke covenanted to deliver to Cassell, a good and sufficient deed of conveyance, clear of all incumbrances, on the 10th April, 1814, when Cassell was to make his first payment, and to give his bond, with sufficient security if required, for the remaining two-thirds. Possession was to be given to Cassell on the 1st April, 1814, and for the faithful performance, of their respective covenants, the parties were bound in the penalty of one hundred thousand dollars.
    On a survey being made of the property, it was found to contain 186 acres 132 perches. Possession was delivered agreeably to the contract, and Cassell continued to enjoy the property ^without molestation. On the 7th April, 1814, he paid Cooke 5077 dollars, and on the 13th of the same month, 9000 dollars. On the 12th April, 1815, he paid 4700 dollars, on the 3d May following 500 dollars, and on the 16th of the. same month, 600 dollars more; leaving a balance due on the first payment, of 599 dollars 61 cents, including interest. For this balance, together with the second and third instalments, this action was brought. Before the commencement of the suit, viz. on the 31st of January, 1816, a tender was made of a conveyance from Cooke and wife to Cassell, dated 13th January, 1816, which purported to have been acknowledged before two justices of peace of Washington county, in the State of Maryland, where the grantors resided.
    The defendant gave notice, that on the trial he should expect the plaintiff to produce his title to the lands which he had undertaken to sell; that the defendant should rely on the want of title in the .plaintiff, to the said land, and upon his having neither given nor tendered to the defendant, any title before the commencement of the suit; that owing to the inability or neglect of the plaintiff to convey any title 4o the defendant, he lost all advantage of the purchase, and was rendered incapable of embracing the advantageous terms offered to him by others, for the purchase of portions of the said lands at high prices, by which he has been greatly and irreparably injured, and the bargains between those persons and himself, entirely annulled and rendered void.
    A declaration having been filed, containing no averment of performance of covenants by the plaintiff, it was withdrawn, and another substituted, containing averments of the performance of covenants on the part of the plaintiff, according to the letter of the articles of agreement. To this declaration, the defendant pleaded, payment, with leave to give the special matter in evidence, and covenants performed. After the jury had been sworn, and some progress made in the trial, the counsel for the plaintiff applied for permission to amend the declaration, by adding a new count, which, in effect, set forth, that the plaintiff and his wife, were on the 10th April, 1814, ready and willing to execute and deliver to, the defendant, a good and sufficient conveyance of the premises, clear of all incumbrances, which deed of conveyance was not executed and delivered until about the 31st January„ 1816, at the special instance and request of the defendant, and in consequence of his inability to comply with his agreement to pay one-third of the purchase money on the day oft which the deed was to be executed, and to give his bonds, with approved security, for the remaining two-thirds; that it had always been understood between the parties, that the said articles of agreement subsisted and continued in full force, notwithstanding the indulgence granted by the plaintiff to the defendant, and that the defendant, in part performance of his covenants, paid to the plaintiff the several sums of money already enumerated, which were particularly specified in the count; that the plaintiff and his wife, on the 13th January, 1813, executed a good and sufficient deed, for the conveyance of the premises to the defendant, clear of all incumbrances, which deed the plaintiff, on or about the 31st January, 1816, before the commencement of this suit, averred he was ready to deliver, and offered and tendered, and was always afterwards ready to deliver to the defendant, who refused to accept it. The introduction of this count was objected to by the counsel for the defendant, but the Court permitted it to be added to the declaration. No plea was entered to this count. An application was afterwards made for permission to increase the damages laid in the declaration, which was also objected to, but allowed by the Court.
    In deducing his title from John Stuart, the original patentee of the land in question, the plaintiff gave in evidence the will of the said John Stuart, dated 30th October, 1749, by which, after several bequests of personal property to his wife, Ann Stuart, he devised to her “ the benefit and full privilege of the plantation he then lived on, until his son, George Stuart, arrived at the age of twenty-one years, for the schooling and maintenance of his three children, till they all came of age ; and if his wife remained a widow, until his son George was of age, after that, she should enjoy the one half of his plantation, with all the benefit of it during her life or widowhood.” The will then proceeded as follows: *lItem, I give and bequeath to my son, George Stuart, the plantation and land I live on, as soon as he arrives at the age of twenty-one years, if my wife, Ann Stuart, be then married or dead, but if she still continues a widow, each to enjoy hall-as above, of 'the remainder of my tract of land, having sold one hundred and fifty acres,” &c: “ Item, I give and bequeath to my daughters, Sint and Jean Stuart, the remaining part of mv personal estate, to be equally divided betwixt them, and if either of them be removed by death, before they be at age, the other to enjoy the whole, or if my son, George Stuart, be removed by deaths before he be of age, his part to fall to my two daughters.”
    
      George Stuart, the above mentioned devisee, and his wife, by deed, dated, 21st February, 1760, conveyed the premises, in fee, to Henry Furry, who by deed, bearing date, the 12th of the following May, conveyed them, in fee, to David Cooke, who, on the 24th April. 1787, devised them in fee to his son, David Cooke, the plaintiff, charged with the payment of several legacies, which were proved by parol evidence, given on the trial, to have been discharged.
    The deed from Henry Furry to David Cooke, it appeared, had been mislaid, and was not found until some time, in the year, 1816.
    
    
      It was proved by a witness on the trial, that the land in question, had been in the uninterrupted possession of David Cooke, the father, and of his son, the plaintiff, for a period of at least forty-four years, prior to the 1st April, 1814, when possession was delivered to the defendant.
    After the plaintiff had gone through his case, the defen» dant offered to give evidence, that after the execution of the articles of agreement of the 10th August, 1813, and before the 10th April, 1814, he had made contracts for the sale of about fifteen acres of the land to be conveyed, for about twenty thousand dollars, to be carried into effect, immediately after the last mentioned day, on his obtaining a title from the plaintiff; to enable him to fulfil his contract with the plaintiff, by giving him the command of greater means, and that in consequence of the plaintiff not being able or willing to give him a good title, clear of all incumbrance, on the day agreed upon, he was compelled to rescind his contracts, by which he sustained heavy losses. The admission of this testimony was objected to by the counsel for the plaintiff, and the Court decided, that so much of it as went to shew, that the plaintiff was not able or willing to give the defendant a good title, clear of all incumbrances, on the 10th April, 1814, might be received, but that the rest was inadmissible. On this opinion,'a bill of exceptions was sealed, at the request of the defendant’s counsel.
    The Court were requested to charge the jury on the following points :
    
      1. That the only action’ maintainable by law, for a breach of articles of agreement, is, an action for damages, of which the jury are the judges, under the direction of the Court.
    2. That where an action is brought for the specific performance of an.agreement, it is discretionary with a Court of Equity, either to carry it into execution or not’: otherwise a decree might be made, which would tend to the ruin of one of the parties. ...
    3. That a Court of Equity will never enforce a specific performance of articles of agreement against a purchaser, where the title offered to him is doubtful, nor where the bargain is unreasonable and unjust, nor where the bargain is a hard and unconscionable one, nor where the price is three times the value of the object sold, and given under a general delusion.
    4. That the seller caiinot bring an action for the purchase money, without delivering, or tendering a good title to the purchaser.
    5. That the time fixed for the performance of a contract, is always to be adhered to and complied with at law ; that equity never dispenses with it, where it is to operate in favour of one party to the injury of the other j and that the time fixed in a contract for its performance, is always material, when the value of the object contracted for is greatly affected by it, or when the non-performance at the time fixed, is highly prejudicial to the party against whom relief is asked.
    6. That where, on a sale, the title is to be given and the purchase money is to be paid at the same time, the purchaser is not bound to pay his money, till a. good title, according to the bargain, is executed in due form of law, and ready to be actually delivered, on the payment of the purchase money.
    
      7. That Cassell.; by taking possession on the 1st April, 1814, according to the bargain, waived no right to object to every defect which might appear in Cooke's title to the land, when he was ready and willing to exhibit it to him for examination on the 10th of April, 1814, the time fixed for giving the title, or at any time after at which he might bring it forward.
    8. That the will of John Stuart, given in evidence in this cause, gives an estate for life only, to his son George; and that George could not convey in fee simple, the land devised to him, to Henry Furry, under whom the plaintiff derives his title, and consequently the plaintiff’s title is not good, and the defendant is not bound to receive it.
    
      9. That the Statute of Limitations has no application to this cause, because the plaintiff has purchased from a tenant for life. His title is therefore a part of, and consistent with, and not adverse to, the claim of the reversioners, if the tenant for life be dead. And because it is incumbent on the plaintiff, (if, in any event, the Statute could apply) to shew when George Stuart, the tenant for life, died, so as to open the way for tbe operation of the Statute; he cannot impose that duty on the defendant, the purchaser.
    10. That the legacies given and charged by David Cooke's will on the lands sold by the plaintiff to the defendant, are not proved to have been discharged by the testimony given in the cause ; as parol proof is not sufficient for that purpose, unless an absolute necessity for it exists, of which no proof has been given in this cause, and that without such necessity, a seller is bound to give a purchaser a release, which not having been done by the plaintiff, the lands, as to the purchaser, are not cleared of the incumbrance, and he is not bound to accept the title.
    11. That the deed of the 13th of January, 1816, is not a good title according to the articles, and the defendant is not bound to accept it.
    12. That this suit being an action of debt for the penalty of the articles, the plaintiff ought to shew, that he has exactly and literally performed his part of the agreement.
    13. That the plaintiff is bound to shew that he has a complete title, regularly brought down from the State or Province, and that it is not sufficient for him to shew a patent to George Stuart, and then the devise under his father’s will.
    The following are the material parts of the charge of the Court, delivered by
    Franklin, President. — The objections made by the defendant, to the plaintiff’s right of recovery, are these :■ — i
    That under the articles of agreement, it was incumbent upon tbe plaintiff, before he could recover, to make and tender a good and sufficient deed to the defendant, on the 10th April, 1814, clear of all incumbrances, and the omission to do this, would have been an insuperable bar to the plaintiff’s right of recovery, had the defendant availed himself of it at the time. The plaintiff was bound to give a title on the 10th April, 1814 ; if he did not do it, the defendant was at full liberty, immediately after that day, to rescind the contract, and to refuse to pay any part of the purchase money ; but, had he done so, it was his duty to give up the possession, and to place the plaintiff in the same situation, in which he •was before the agreement.
    But, if the plaintiff was withheld from making a tender on the day appointed, by the request of the defendant, or at his instance, or was prevented from doing so by his conduct, he cannot avail himself of the omission to do it on the day appointed. Whether that was the case in the present instance, is a matter of fact for you to determine. This suit being an action of debt, for the penalty of the articles of agreement, the plaintiff ought to shew, that be has exactly and literally performed his part of the agreement, unless he has been prevented from doing so, at the request or instance of the defendant.
    It is said, that the will of John Stuart given in evidence in this cause, gives an estate for life only to his son George, and that he could not convey in fee simple, the land devised to him by virtue of the will, to Henry Furry, under whom the plaintiff derives his title, and consequently that the plaintiff’s title to it is not good, and the defendant is not bound to - receive it.
    
      I have considered this will as carefully as the time and opportunity would permit, and I think myself bound by the authority of the Case of French and another v. M'-Ilhenny, in the Supreme Court, to decide, that the will of John Stuart, conveyed a fee simple to George Stuart; and I am of opinion, that the title to the property has been regularly deduced from him to David Cooke, the plaintiff. The plaintiff, before he could recover, was bound to shew, that he had a complete title brought down to him from the Province or State, and this we think, he has done.
    But, whether the will conveys a fee simple, or only an estate for life, if Daniel Cocke, and those under whom he claims, were in quiet possession for twenty-one years, after the death of George Stuart, it will give him a good title, un less it be shewn on the part of the defendant, that there is a title in some one else, which has been saved by the Statute of Limitations, in some one of its exceptions.
    
    Before the plaintiff can avail himself of the Statute, you must be satisfied, either from positive evidence, or from such circumstances as necessarily attend the fact, that George Stuart had been dead more than twenty-one years, before the title should have been made to Cassell.
    
    Another objection is, that the legacies given and charged by David Cooke's will, on the lands sold by the plaintiff to the defendant, are not proved to have been discharged by the testimony given in this cause, as parol proof is not sufficient for that purpose, unless an absolute necessity exist, of which no proof has been given in this cause, and that without such necessity, a seller is bound to give a purchaser a release, which not being done by the plaintiff, the lands, as to the purchaser, are not cleared of the incumbrances, and he is not bound to accept the title.
    
      But, the Court do not think, there is any thing in this objection, as independent of the right of the defendant to retain so much of the purchase money, as would be sufficient to discharge these incumbrances, we do not think that a release is ■necessary ; the payment of these legacies may be proved as any other fact, by any legal evidence. The receipts in this case were good and sufficient, as it does not appear, that any other person than those who gave them, had g right to receive the money.
    
    With respect to the deed which had been mislaid, whatever right its non production might have given to Mr. Cassell, at one time to rescind the contract, it cannot, under the circumstances given in evidence, be now made use of for that purpose, because its being mislaid, could not divest the property of David Cooke; and though, for some time, it could not be produced, it is now shewn, that it was always in existence, and, that at no period, was there any defect in the plaintiff’s title.
    But, were the title of the plaintiff ever so unexceptionable, he cannot recover, unless he has complied with all the requisites which the law calls for in cases of this kind.
    It is essential, that before the suit was brought, he should have tendered to the defendant, á good and sufficient deed of conveyance, for the property in question.
    A tender and refusal of such a deed, are equivalent to performance. On this part of the case, you will have to determine, as a matter of fact, whether a deed was tendered at all, to the defendant, before suit brought; if there was no deed tendered, the plaintiff has failed in proving an essential part of his case, and he would not be entitled to recover. If there was a deed tendered, before suit brought, then it becomes necessary to consider, whether the deed so tendered, was a good and sufficient conveyance of the land, agreed to be conveyed.
    It appears to the Court, that this deed is expresséd in due and legal form; that it is a conveyance of the property in dispute ; that it contains the usual proper covenants on the part of the grantors, and that it has been duly and legally acknowledged by them. We consider the Justices of the county, as its chief officers, unless the contrary be shewn. If then, the deed were tendered, before suit brought, the objection founded on its insufficiency fails, and the plaintiff’s cannot, on that account, be prevented from recovering.
    The counsel for the parties having requested the Court to give their opinion to you on certain points, we will now notice them.
    The principle is settled, that when an action is brought for the specific performance of an agreement, it is discretionary with a Court of Equity, either to carry it into effect, or not; otherwise, a decree might be made, which would tend to the ruin of one of the parties.
    So, a Court of Equity will never enforce a specific performance of an article of agreement, against a purchaser, where the title offered to him is doubtful, nor where the bargain is unreasonable and unjust, nor where the bargain is a hard and unconscionable one, nor where the price is three times the value of the object sold, and given under a general delusion.
    So, a seller cannot bring an action for the purchase money, without delivering, or tendering, a good title to the purchaser.
    It is also a general principle, that the time fixed for the performance of a contract, is always to be adhered to and complied with, at law; that equity, however, dispenses with it, where it is to operate in favour of one party to the prejudice of the other, and that the time fixed in a contract for its performance, is always material, where the value of the object contracted for, is always greatly affected thereby, or where the non performance at the time fixed, is highly prejudicial to the party against whom relief is asked.
    So, where on a sale, the title is to be given and .the purchase money is to be paid, at the same time, the purchaser is not bound to pay the money, until a good title, according to the bargain, is executed in due form of law, and ready to be ac- ’ tually delivered on payment of the purchase money.
    So, as Cassell had a right to take possession on the 1st of April, 1814, according to the articles of agreement, by doing so he waived no right to object to any defect which might appear in Cooke's title to the land, when he was ready and willing to exhibit it to him for examination, on the 10th April, 1814, or at any other time after, at which he might bring it forward.
    
      These positions are, all true as general positions ; you are to decide how far they are applicable under the evidence, in this cause. It is certain, that a delusion, to affect a bargain, must be a general and not a particular delusion, or such as may affect a few individuals. Mere inadequacy of price, is not sufficient to destroy a contract. A purchaser may waive the right which the law gives him, to have the bargain completed at a particular time. He will not be'permitted to object to the title on account of mere probability ; and in equity, it is equally incumbent on the purchaser to ask for an abstract, as on the vendor to deliver it; and if the purchaser do not call for the abstract, before th'e time agreed upon for its der livery, or do not ask for it until it has become impossible to execute the agreement by the day fixed, equity will consider the time as waived.
    Having thus stated to you the opinion of the Court upon the points of law, it ■ is for you to determine the facts, and to give such a verdict as in your consciences you may think right.
    To this opinion a bill of exceptions was tendered by the counsel for the defendant; and on the removal of the record to this Court, the following errors were assigned:
    1st. The Court erred in allowing the amendments to the declaration.
    2. In rejecting the evidence offerecLin the bill of exceptions.
    In the charge of the Court, there is error in the following points :
    1. In instructing the jury that George Stuart took an estate in fee, under his father’s will. 2. In charging the jury that twenty-qne years possession, after the death of George Stuart, would give a good title, unless defendant shewed there was a title in some one else, saved by some of the exceptions in the Statute of Limitations, even if George took for life only.
    3. The Court, in the absence of all proof of the death of George Stuart, instructed the jury that they must be satisfied by positive proof, or such circumstances as necessarily attend the fact, that he had been dead twenty-one years before the sale to Cassell, when there was no proof in the cause to Warrant any such instruction.
    
      4. The Court erred in charging the jury, that the legacies, which were a lien on the land, were discharged, as against a purchaser for an extravagant price, without a release ; and that parol proof, made upon the trial for the purchase money, was sufficient, and that a right to retain to the extent of ihe legacies, did not exist on the part of the purchaser.
    
      5. In instructing the jury that the plaintiff’s title was good, and that at no period was there any actual defect in it, though the deed to Henry Furry was not in his power, nor ever produced to the defendant till 1816.
    6. The Court erred in instructing the jury, that the deed tendered on the 13th January, 1816, is a good deed, and properly acknowledged.
    
      7. That the Court laid down the law correctly, as to the operation of time in a Court of law, but erred in stating to the jury, that equity, however, dispensed with time, where it was to operate in favour of one party, to the injury of the other.
    8. That the Court erred in referring to the jury the application of the points the Court were requested to charge them upon ; that application being the province of the Court.
    9. That the Court misdirected the jury, in instructing them in legal matters, not relevant to the matters in trial.
    
      Jenkins and Hopkins, for the plaintiff in error.
    The amendments permitted to be made on the trial, were not allowable either at common law, or under our Act of Assembly, and could be granted only under the equitable powers possessed by the Court. This, however, is not such a case as to call for such indulgence. An action of debt for a penalty, has no equitable claims, and the same liberality with regard to amendments, which is shewn in actions of covenant, can not be extended to it. Nor is the plaintiff entitled to the same indulgence in setting forth an alteration in the agreement. In an action fora penalty, the plaintiff must shew that he has exactly and literally performed his part of the agreement. Sugden, 155. But supposing this action to be in the nature of covenant, because breaches were assigned, and the plaintiff claimed damages, an amendment ought not to have been allowed, because the contract was executory. Cooper v. Jordan, 3 Serg. & Rawle, 564, was an action of covenant; besides which, as the defendant had accepted the deed after the day originally agreed upon, an equitable interference on the part of the Court was necessary. The Court erred too, in permitting several amendments. After the jury were sworn, not more than one should have been allowed. Added to which, there was no issue joined on the declaration as last amended ; and the cause was mistried on the narr. alone.
    Notice had been given of the special matter offered by the defendant and rejected by the Court. It was very material, and ought to have been received for the purpose of shewing. that there should be a deduction from the damages claimed by the plaintiff, if for nothing more. Where a party comes into Court and asks for a specific performance of an agreement, he must shew that he has performed his part of the contract, according to the letter. Sugden, 168; and is it always in the discretion of the Court, to decree a specific performance or not. 3 Atk. 386. A hard bargain not executed, will not be carried into execution in equity. 2 Atk. 134. Nor where there is á gross inadequacy of price. Sugden, 167. 8. And if a contract be entered into at a time of general delusion, equity will not decree a performance. 1 P. Wms. 745. At the time the agreement between the present parties was entered into, a general delusion existed with respect to the value of land, which was purchased by the defendant at a price at least two-thirds greater than it was intrinsically worth. To impose upon him the payment of a price so grossly inadequate, would be to burthen him with a hard and inequitable bargain. On the execution of the agreement, the defendant had a right to make contracts for the sale of the land, on the faith of receiving a good title from the plaintiff at the time agreed upon, and actually did- make a very advantageous contract, which could not be carried into effect in consequence of the failure of the plaintiff to comply with his agreement. Of this, a chancellor would certainly have heard the evidence, if the plaintiff had filed a bill for specific performance ; and the Court of Common Pleas, should have been governed by the same principle, and pursued the same course.
    The first error in the charge, is in that part of it which declares that George Stuart took an estate in fee in the whole of the land in question. We say he took an estate for life, and only in one-half. The introductory clause was drawn by the scrivener as a matter of course, and is entitled to little or no weight, Willis v. Bucher, 2 Binn. 464. The devise of the whole plantation to George, at the age of twenty-one, depended on the contingency of the widow’s being then dead or married. If she continued a widow, each was to enjoy one-half. The contingency did not happen, and therefore the son took but half the estate. The will contains no words of inheritance — on the contrary the devise to the widow is expressly for life. Then the testator declares, that each shall enjoy one half, as above; which words refer to nothing but an estate for life, before given to his wife. If the will had stopped here, it would be clear that George took an estate for life in one-half; because the word plantation, is no more than a description of the subject of the devise. The residue of the estate would have descended to the heirs of the testator. But he afterwards says, if George should die before he comes of age, his part shall fall to his two sisters ; that is, to them for life, as it would have gone to their brother. George was to have nothing until he arrived at age. If the true construction is, that he took a fee, then if he had died before twenty-one, and left issue, his issue would have been disinherited, and his sisters would have taken the whole estate. The case of Clayton v. Clayton, 3 Binn. 476, settles the law on this subject, which appears to have been in some degree broken in upon by the case of French v. M'Ilhenny. Judge Yeates returned to the principle, from which he seems to have swerved a little. In the case referred to in 4 Bac. Ab. 
      256, there was an immediate devise to the son. But in the present case, the devise to George depended upon a contingency. The devise to the daughters, was not a limitation after an estate for life to their brother j but a contingent devise, to take effect, in case he died before twenty-one.
    2. & 3. The opinion of the Court with respect to the operation of the Statute of Limitations, was erroneous. The only evidence on this point was, that David Cooke, the father of the plaintiff, had been in possession upwards of forty-four years. But, that was not enough. It should have been shewn, when George Stuart, the tenant for life, died, and, that at his death, the title accrued to some one not under any incapacity. George might not be dead. If living, he would be but sixty-five years old, and no account was given of him. If, on the other hand, he had been dead twenty-one-years, the person entitled to the reversion, might have been an infant, and consequently the Statute would not begin to run. It is incumbent on a party who claims under the Statute of Limitations, to shew that it has attached. The instruction to the jury was, therefore, wrong, that the burthen lay upon the defendant to prove some outstanding title, saved by one of the exceptions of the Statute. It was unreasonable to require it, because, the purchaser knows nothing of the title. Sugden, 205. 210. 260.
    4. The legacies, being charged on the land by writing, should have been cleared by writing. It was the duty of the plaintiff to have obtained releases. The purchaser could not otherwise be protected. It would be unreasonable to expect him to hunt up parol evidence of the payment of the legacies.
    5. The deed from Henry Furry to David Cooke, was an essential link in the chain of title, and as that could not be produced until 1816, it could not with propriety be said, that “ the plaintiff’s title was good, and at no period was there any actual defect in it,” which was the charge of the Court.
    6. The deed tendered to the defendant, was not such a one as the plaintiff contracted to give. The defendant was to receive a title clear of all incumbrances: yet, this deed merely contained a special warranty, though the title on its face, shewed incumbrances, it should have contained a war-i’anty against incumbrances. If the defendant had been compelled to pay the legacies, he could not have recovered against the plaintiff. But what renders it still more exceptionable is, that the acknowledgment was defective, in being before two justices in Maryland, who were not the chief officers of the place, according to the requisition of the Act of 24th February, 1770. Purd. Dig. 117. The certificate merely' proves them to have been justices of the peace; but there was nothing to shew, that they were the chief officers, and the Court were wrong in saying, they could presume that they were. The Judges of the County Court, were certainly superior officers of the county. In Ward v. IF Intire, there1 was a certificate, that the justices were the chief officers. It is true, the defendant made no particular objection to the deed when it was tendered, nor was he bound to do so : the plaintiff made the tender at his peril.
    
      7. There was manifest error in instructing the jury, that equity dispenses with time, when it operates in favour of one party, and to the injury of the other.
    8. The Court submitted to the jury, the application of the legal principles to the facts of the case, which wasa duty peculiarly belonging to themselves. Fisher v. Lorick, 3 Serg. & Rawle, 319.
    
      Rogers and Buchanan, for the defendant in error.
    The objections founded upon thes idea of a distinction between an action of debt for a penalty, and an action of covenant, and of the contract being executory, are not supported by fact. An action of debt on a penalty, where the plaintiff goes for damages on breaches assigned, is in the nature of an action of covenant, and governed by the same rules. In this case, the plaintiff claimed no more than his principal and interest. The contract was executed by delivery of possession. ■ It was not a new declaration, but a new count, which the Court allowed, by adding the circumstances of an enlargement of time, by consent of the parties. This, the Court had an unquestionable right to do, under the Act of Assembly, which permits amendments in substance as well as in form. The authorities to support this amendment are numerous. 4 Sm. L. 329. 1 Binn. 369. 486. 588. 2 Binn. 291. 5 Binn. 33. 51. 2 Serg. & Rawle, 219. 2 Johns. 296.
    
      The evidence offered by the defendant on the trial, was of two kinds ; one, to shew that the plaintiff’s title was defective, which was admitted ; the other, to shew that the defendant had suffered damage, by losing the benefit of the sales of several parcels of the land, which he had agreed to sell, which was rejected. When this evidence was offered, no defect in the plaintiff’s title had been shewn, and, under these circumstances, it was undoubtedly inadmissible. But, it was improper in any stage of the cause, because, it was res inter alios acta. As the defendant had not the means of making his payment to the plaintiff, so as to entitle himself to a deed, it was his own folly to make contracts for a sale of part of the land. .Besides, these contracts may have been made for the mere purpose of laying the foundation of a claim for damages. Anderson’s executors v. Share, decided in this District in May, 1821, settles the question.
    1st error in the charge. The devise to George Stuart, in his father’s will, gave a fee. The introductory words, though not sufficient per se to pass afee, should, nevertheless, in this will, have some weight. They shew an intention to dispose of the whole of his “ worldly éstate,” of which it was his intention to give the whole of his land, eventually, to his only son. To his widow and two daughters, he gave the whole of his personal estate, and to the former, the benefit andfull privilege of his plantation, until his son came of age ; after which, she was to enjoy one half of the plantation, -with all the benefit of it, during her life or widowhood. When the testator devises to his son, he uses different language. He gives him the plantation and the land he lives on; thus shewing, that when he intended to give an estate for life only, he knew how to use appropriate words. This was a circumstance greatly relied upon in French v. M'Ilhenny, 2 Binn. 13, a case which bears a strong resemblance to this. The limitation over to the daughters, in case the son should die in his minority, shews an intention to give him a fee, for, if he took only an estate for life, the time of his arrival at full age would be immaterial as regards the limitation over. This is the true construction of the will, even upon strict principles of la1 which ought not to be applied to a testamentary instrume.' made at so early a period as 1749, when the devise of an improvement, carried a fee. Anonymous, 3 Dall. 477. In support of this part of the argument, 4 Bac. Ab. 256. 2 Saund. 388. (note a.) Willes. Rep. 138. 142. 1 Burr. 224. Bramstone v. Holyday, 3 Burr. 1618, were also cited.
    2d & 3d errors in the charge. A possession by the plaintiff and those under whom he claimed, for more than forty-four years, prior to the time when possession was delivered to the defendant, was proved on the trial; and the jurv were satisfied, that George Stuart had been dead twenty-one years. It lay, therefore, upon the adverse party, to shew some outstanding title saved by the Statute. In England, it may require sixty years to give a good title by possession, because a writ of right is not barred before the expiration of that period. But in Pennsylvania, twenty-one years possession, is sufficient for a recovery in ejectment; and a purchaser cannot require a better title, than one which will enable him to recover in ejectment. Pederick v. Searle, 5 Serg. & Rawle, 236.
    4th error in the charge. The Court told the counsel, it was unnecessary to speak to that point, which related to the legacies charged upon the land.
    5th error in the charge. All that the Court said was, that although the deed was at one time mislaid, yet, as it was found before the defendant had a right to demand a conveyance, the title was never defective. In this there was certainly no error. If the defendant had been ready to perform his part of the contract, and had been prevented by the loss of the deed, the title would have been defective within the spirit of the agreement; but as he went on to make payments, after he knew that the deed was missing, he acknowledged that even then the title was good, and cannot, after it has been found, set up its temporary loss, as a defect.
    6th error in the charge. That the deed tendered by the plaintiff to the defendant, contained no covenant against incumbrances, was no objection to it. The agreement was, that a good title should be given, free from incumbrances, and this the plaintiff was ready to perform. The objection made to the acknowledgment, even if it were well founded, ought not to reverse the judgment. When the deed was tendered' to the defendant, he refused to accept it altogether, but did not assign this alleged defect as a reason. If the objection had been made then, it might have been removed by a new acknowledgment. But, every shadow of objection is now removed by the death of Mrs. Cooke ; for, as regards Mr. Cooke, the deed was proved by the witnesses, and recorded, and is, therefore, good. On the trial, too, it was read to the jury, without opposition; and though the defendant was called upon to specify the defects of title which he intended to insist upon, this was not among them. But we contend, that the acknowledgment was good, on the authority of M'Intire v. Ward, 5 Binn. 296. A county is aplace, within the meaning of the Act of Assembly; and if there be none superior, the justices are the chief offcers. The Judges of the Court of Common Pleas are certainly superior to the justices, but they are State, not county, officers.
    Pth error in the charge. This was a mere clerical mistake in copying the Judge’s charge. The word “ however” was written, instead of “ neverP
    
    8th error in the charge. Before the Court made the general remark which, it is said, “ referred the application of the law to the jury,” they had given their opinion upon all the points submitted to them. It was the fault of the defendant’s counsel, who proposed abstract propositions, that they received such general answers. They were answered, however, favourably to the defendant, and he could ask no more. The Court decided the law, and the jury the fact. If the jury had been told, that they had no right to apply the law to the facts, it would, no doubt, have been complained of, as error. This case is not like Fisher v. Larick.
    
    
      
       See 7 Serg. & Rawle, 43.
    
   The opinion of the Court was delivered by-

Duncan J.

Divesting it of mere technicality, and considering it on its real merits, the inquiry would be a very simple one : Had David Cooke a legal title ? If he had, did he tender to Henry Cassel, a good and sufficient conveyance, clear of incumbrances ? There are many minor points, which have been much insisted on by the plaintiff in error, and which it is proper to consider:

The amendment, or filing a new declaration. It has often been decided in this Court, that the power of the Courts, under the Act of the 25th of March, 1806, is not confined to mere alterations of form, but, in its terms, embraces every informality, which will “ affect the merits of the cause in controversy.” The alteration was not the substitution of a new cause of action ; and the true criterion is, whether the alteration or proposed amendment, is a new and different matter — another cause of controversy ; or whether it is the same/ contract or injury, and a mere permission to lay it in a manner zvhich the plaintiff considers will best correspond zoith the nature of his complaint, and with his proof, and the merits of his case. Of the latter description was the amendment complained of, — complained of without any just reason. It is one of the cases provided for by the Act; it introduced no new substantive cause of action; it was the assignment of a breach of the same covenant,'on the same instrument, to be covered by the same penalty.

As to the rejection of the evidence, offered by the plaintiff in error, to shew the damage he alleged he had sustained, by not having his title at the time stipulated in the contract, the/ first matter which must strike every one, is, that this is not a question of contract purely executory. It is partly executed, and when a title can be made, it is mainly executed by the vendee, by possession delivered, and uninterrupted enjoyment. And if it were altogether executory, the tender of the conveyance, and payment of the hand money, were concomitant acts. There is no priority in the order of time. The covenants are dependant: the one is not obliged to convey without payment of the purchase money, the other is not bound to pay, unless conveyance be made; and before either could complain of damage from non-performance by the other, he should put himself in an attitude to demand it. Cooke could not bring an action for the purchase money, without tendering a conveyance ; so neither could Cassell for non-delivery of the conveyance, until he tendered the hand money and bond with security for the future payments. It is a principle of natural justice and received law, that if a vendor or vendee wishes the other to observe a contract, he immediately makes his part of the agreement precedent; for he cannot proceed against the other, without an actual performance of the agreement on his part, or a tender and refusal. So that a vendor cannot bring an action for the purchase money, without having executed the conveyance* or offered so to do,' unless the purchaser has discharged him from doing it; and on the other hand, a purchaser cannot maintain an action for a breach of contract, without having tendered the purchase money. If the plaintiff has sustained a loss, he has not sustained actionable damages ; he could bring no action for their recovery. And as they would not be a weapon with which he could attack his adversary, so they could be no shield of defence against him. It was damnum sine injuria, and, as will be seen in the sequel, was occasioned by his own default. The evidence was properly rejected.

There are nine special errors assigned to the charge of the Court, and their answers to the several points made by the plaintiff in error. In the view of them which this Court has taken, it is unnecessary to consider the second, third, eighth, and ninth. The first is, that George Stuart, from whom the plaintiff deduced his title, had only a life estate under the will of John Stuart, his father, the patentee. The patent was obtained in 1738; the will was executed in 1749,, The cases relied on by the defendant in error, and the argument attempted from the early day in which this will was executed, supplying the omission of words of inheritance, have no relation to the construction of this devise. They depended on the inchoate nature of the rights of testators, — settlement rights and warrant rights, on which no patent had issued, and which, in those times, were considered and treated, as mere personals, sold by administrators without an order of the Orphans’ Court, a mere surrender of possession, or conveyed without any word of inheritance, delivered over by indorsement on the warrant. But here there was a perfect grant, a strict legal title in the testator when he made his will, and its disposition must be governed by the general rules and law of devises, with respect to real estate. This will, though not very perspicuous in expression, plainly manifests the general objects and intention of the testator. It has little relation to French v. M'-Ilhenny, in which there was diversity of opinion on the Bench ; which was considered by the bar, as a departure from the general law, and which one of the Judges in the majority, Judge Brackenridge, announced as a kind of declaration of independence of all English decisions on the doctrine of limitations in wills of real estate; but the other Judge, Ye ates, protested against, such a conclusion. See Clayton v. Clayton, 3 Binn. 490. In all the decisions to be found in our own books of reports, the authority is acknowledged. On a subject in which every man has an interest, involving the rights of all men who hold real estates, it would be dangerous to cast off all authority and settled rules of construction, which have, by adoption and long use,.become with us rules of property ; and if there is any certainty in this branch of the law, it is certain, that a devise of lands, per se, without words of restriction, and where there are no words denoting the general right, property, interest, or estate of the testator, or words of inheritance, does not carry the fee. The conclusion of the law is not, that where there is a devise of land, a plantation, a house, without more, a fee is devised ; a fee is intended, and one is therefore devised.’ But it is equally certain, that if an intention to devise a fee is evident, and clearly manifested by the general scope of the will, taking into view all the circumstances and clauses in the whole will, uniting them together to collect the testator’s intention, it will be construed a fee. It is not material, what words are used, whether technical or not, the meaning and intention being thus collected from the words, or necessary implication. As the Statute of Wills requires no formal, technical set of words, to give a fee, when by a sound construction, it is once ascertained (not by a conjecture, that because the testator has not added restrictive words, he designed an unlimited and absolute disposition of his whole interest) that he intended a fee, it is the duty of Judges so to construe the will. These rules being our guides, let us examine this will. It is short, and I will read the prefatory and devising clauses. [His Honour here read the will.] It is declared by the testator, that he intends to dispose of all his worldly estate, out and out. This will not, of itself, be sufficient to give a fee, but is always carried down to the devising clauses, to shew the intention. Every testator has, in his own mind, formed some general plan, though too often his intention is barred, by the ignorance of the scrivener who draws the will. The plan of this testator, (and whatever difficulties may strike us, on reading cursorily detached passages and separate clauses of his will, yet in putting the whole together and taking all into one view, they disappear, and leave the mind free from all doubt) was, that his only son should hold his real, and his wife and his two daughters, his personal estate ; — a very common mode of disposition,— the land to the males, the personal estate to the females. His second object was, a provision for his wife, and all his children, during their infancy. To effect this, he directs that his wife shall enjoy the whole plantation, until George arrives at the age of twenty-one ; and that after that time, she shall enjoy, during her life or widowhood, the one half. The third object was, a provision for the case of either of his children dying under age ; the part of him or her so dying, should go over, (still keeping the personal estate in the female line,) to the survivor ; for if one of the daughters died before twenty-one, her part was to go to her sister; if George died under twenty-one, his part was limited over to his sisters ; to fall to his two daughters. It is a devise of the plantation to George, and if he dies before twenty-one, then to his sisters. If George only took an estate for life, his sisters would take at his death, even from his issue, though he died at the age of four-score, against the direct limitation over to them, which is confined to George’s dying under twenty-one. This cannot be the true construction of the will. “ If George be removed by death before the age of twenty-one, then to his two daughters;” this shews a clear intention to give a fee, for if he lived till twenty-one, he might then dispose of it himself; if he died before, he could not, and in that event, the testator disposed of it. If George was only tenant for life, the time of his death was immaterial to the devise over; but limiting it over only on the contingency of his dying in his minority, shews he intended to give him an absolute estate in fee, which he might dispose of, if he came of age ; and unless he came of age, so that He could dispose of it, he intended it should go to his daughters. So is the opinion of Saunders, in Purefoy v. Rogers, 2 Saund. 388, which has been followed in many cases. Tomkins v. Tomkins, in Chancery, cited in Goodtitle v. Whitby, 1 Burr. 234. The whole doctrine of the effect of the words, if he should die under twenty-one, is fully stated in Bramstones’ Lessee v. Holiday, 1 W. Bl. 335, 3 Burr. 1618, and clearly proves, that a giving over, on a dying before twenty-one, shews an intention that if the party attain twenty-one, he shall have a fee simple. And this case is approved of by President Siiippen, in Busby v. Busby, 1 Dall. 226, as a leading one, on the general doctrine of devise by necessary implication. Let any man ask himself this question, what did the testator mean, when he said, if my son George be removed by death, before he be of age, his part to fall to my two daughters ? His answer most assuredly would be — he intended by these words, that if he arrived at that age, he should have the power of disposing of it, as he pleased, and if he died without disposition, leaving heirs, it should descend to them ; that the limitation over, depended on one contingency — his death within age.' This is not a construction by conjecture, but one arising from the words themselves, on the most necessary implication. It was not the intention of the testator, if any of his daughters died after twenty-one, that her share of the personal estate should go over to her sister, and yet the limitation over, is in the same words. This disposes of the second error, specially assigned. The question of limitation never could arise, as it was the opinion of the Court, and very properly too, that George took an estate in fee, and that independent of all other considerations, the death of George, and the length of possession, the plaintiff below shewed a good title in himself, ab initio, under the conveyance from George. It is likewise an answer to the eighth specific error. For when George died, or whether he was then alive, was totally irrelevant ; it not being pretended, that he died before twenty-one.

The fourth error. The receipts were legal discharges of the incumbrances. It was not necessary there should be formal releases by deed; any written evidence of payment would be sufficient. If it had been verbal, another question might have arisen. But on payment of the purchase money, the vendee might have required the delivery of these papers : they were muniments of his title. The Court decided, very properly, that the defendants ought not to retain the amount of the legacies out of the purchase money, inasmuch as there was satisfactory written evidence of the discharge of these incumbrances.

The fifth error, as far as I can comprehend it, is, that Cooke had mislaid one of his mesne conveyances. If it had been lost, it would not follow, that Cassell should hold the land without paying for it. The evidence of its existence and loss, might have been supplied by a bill in perpetuam rei memoriam. Cas sell never put himself in a state tp demand the title papers nor the conveyance. When the conveyance was tendered, Cooke had found this lost deed, and was able to give a good title, without any flaw or defect in the chain of conveyances.

The sixth error. It is with reluctance the Court sustain this objection ; for the difficulty is removed by the death of the grantor’s wife, and the execution of the deed was proved by other evidence than the acknowledgment. But she was living, when the action was brought; and the plaintiff’s right to recover, must be complete then, and cannot be perfected by any subsequent acts or events. It follows, that if the acknowledgment and separate examination of the wife was not by competent authority, the plaintiff must fail; for he had not tendered a good and sufficient conveyance, clear of all incumbrances. The evidence of this examination and acknowledgment, is the certificate of the Clerk of the Court of Washington county, in the State of Maryland, that A. M. Waugh and John Hersley were justices of the peace of that county, certified under his official seal; and evidence, that Cooke and his wife were then residents in that county. To support this acknowledgment, The Lessee of M'Intire v. Ward, 5 Binn. 296, has béen relied on. Without-questioning the solidity of the reasons on which the acknowledgment in that case was supported, it is sufficient to say, it was on a ground very different from the evidence or state of this acknowledgment. That was accompanied with evidence that the two Justices before whom it was taken, were principal magistrates, and Justices of the Common Pleas of Baltimore county ; and that in 1779, when taken, no superior officers or magistrates, were in that county, and a certificate to that effect from the the Department of State. There is no such evidence in this case. These gentlemen were not Justices of the Court of Common Pleas of Washington county, when this acknowledgment was taken. They were not, as in the former case, Judges of any Court of record; and it- is not so, that there was no superior judicial magistrate in Washington county. The whole constitution of the judiciary .of Maryland has been changed since 1779. The justices of the pea.ce, are mere' petty magistrates, holding a very subordinate, though a respectable rank. They are not Judges of record. They have a superior, because there is a superior county ¡magistracy; a superior judicial magistracy. The President of the Court, it is well known, resides in the county. The plaintiff below did not produce, he could not produce any official, or other proof, that in Washington county there was no magistrate or peace officer, superior to these two Justices. This was the turning point in M'Intire v. Ward, the Chief Justice deciding it on that reason, and that alone. He observes, “ that had there been a chief magistrate or officer in Baltimore county, and this deed had not been acknowledged before him, the objection would have been fatal; but where several are equal, there can be no chief. In such case a literal compliance with the law is impossible, but its meaning is satisfied, when the person who takes the acknowledgment has no superior.” The conveyance tendered, conforms to the article in other respects. It was a good and sufficient conveyance, clear of all incumbrances, but it was no bar of the wife’s right of dower. The action is an action at law, for the recovery of the money due on the contract, by the medium of a penalty ; and before the plaintiff could demand this money, or sue for the penalty, or for the money due in an action of covenant, it behoved him to tender a good and sufficient conveyance. It is different from debt on a bond, which is of itself, at law, a consideration, and where the obligee must go into equity for relief, if the consideration has failed, or contract has not been complied with. But here the tender of a legal conveyance must precede the call for the money. It is a condition precedent; it is a sine qua non, and must be performed before action brought. Here the Court erred, and for that reason alone, the judgment is reversed.

7th error. Taking the general charge of the Court, in connection with the answer to the proposition of the plaintiff in error, the law was correctly stated. If performance on the day is dispensed with by the purchaser — if he is not prepared to pay at that day — desires indulgence — puts off payment from day to day — procrastinates, and at the same time enjoys the full benefit of the contract, it may be justly said of such a purchaser, that he prevented the vendor from tendering the conveyance at the day, or dispensed with it. Here he retained the possession, went on with partial payment near a year after the conveyance should in strictness have been offered, acted as on a subsisting, continuing, and binding contract. Even at law, if the party himself is the cause why a condition precedent has not been performed, he shall not " take advantage of it; but in equity, if the purchaser receive and hold the possession, and when the conveyance ought to be executed, does not object to the delay, he cannot afterwards insist on it, as a bar to a performance in specie. If he means to insist on the proper time, he should immediately, when the time has elapsed, insist upon the re-payment of his money, arid offer to surrender the possession; but very different was the course of the plaintiff in error. It may be true as a general position, that where the price is unreasonable or inadequate, or the contract is in other respects Inequitable, equity will not assist either party. How far this would apply to the delusive state of the day when this contract was entered into, when men of sanguine tempers, observing the daily rise of the price of lands, purchased as if it were still to continue to rise, while others with more sobriety, calculated differently and sold, it is not necessary to decide, though I cannot see, where no undue advantage was taken, that such a contract could be called unconscientious or why chancery should refuse its aid, unless indeed where the vendor has trifled with his contract, and been, guilty of gross negligence, or shown a backwardness in performing his contract. The reason of this chancery principle, seems to me to depend on the fact of the inadequacy or extravagance of the price of the particular tract sold, evidencing, per se, an advantage taken either of the ignorance or necessity of the contracting party, and not on a general elevation or depression of real estate, in the part of the country where the particular estate is situated. We have all experienced these fluctuations. Lands without an adequate cause, rose beyond their intrinsic value, and as suddenly fell below their real value. I should doubt very much the policy of withholding, in either case, the equitable power of chancery, to enforce the contract, ánd rather incline to think the expressions in Sugden, are to be construed as relating to the price of the particular estate contracted for, and not to the general state of the selling price of property at the time when the contract was entered into ; for the rule must be applied to all sales, as well those where the price is extravagant, as where it is inadequate. It is apprehended that the principle in practice, has not been extended to any sale, unless where there is inadequacy or extravagance in the sum agreed upon, comparing it with the usual current price of estates of the same nature, in the same neighbourhood or district, at the time of the contract. Nothing could have been left more fairly to the jury than this was. Whether the vendor had trifled, or been guilty of gross negligence, or had shewn a backwardness to perform, or whether the delay'was occasioned by the purchaser, were facts for the consideration of the jury, were so submitted to them, and they were satisfied ; and the evidence was sufficient to satisfy any reasonable mind, that plaintiff in error dispensed with performance at the time, because he was not ready to perform his part of the contract j that on the time elapsing, instead of insisting on this as an abandonment, surrendering the contract, and giving up the possession, he waived it, and continued to act upon the .contract as a binding and continuing one, long after it had elapsed, by the most unequivocal act, that of payment of the purchase money. This would, both at law and in equity, prevent him from rescinding the contract on that pretence now.

The 8th and 9th specifications of errors, serve to swell the number, without adding force to the objections. The Court did, with accuracy, apply the facts to the legal points ; nor do I observe any mistake in the matter alleged to be irrelevant. If there was such irrelevant matter used as mere illustrations of the relevant matter, — if all was right as to the matter in issue, misconception of some illustration, some abstract opinion, having no relation to the matter in hand, can be no ground to reverse a judgment. But on account of the defect of the acknowledgment, and separate examination of the wife of the grantor, there being no evidence to shew authority in these officers of Maryland, before whom it was said to have been taken, by the laws of Pennsylvania to take it, the judgment is reversed. '

Judgment reversed, and a venire faciás de novo awarded.  