court of equity will, under particular circumstances, enlarge the time. And in the case of Cornish v. Rowley, 1 Wheaton's Selwyn, 137, the action was for money had and received, to recover back money paid as a deposit on an agreement for the purchase of an estate, the defendant having failed to make out a good title, on the day when the purchase was to be completed; the counsel for the defendant said they were ready to make out a good title, to which Lord Kenyon replied: "As to the sentiments I have long entertained relative to the purchase of real estate, I find no reason for receding from them; they have been confirmed by conversing with those whose authority is much greater than mine. The vendor must be prepared to make out a good title on the day when the title is to become completed." On which the counsel for the defendant asked: "Do I understand your lordship to say that though the defendant can now make out a good title, yet, as that title did not form a part of the abstract, the plaintiff may avail himself of that circumstance?" To which Lord Kenyon answered: "He certainly may, and avoid the contract." And he directed the jury to find a verdict for the plaintiff for the deposit money.

In the case of Davis v. Hone, 2 Sch. & Lef. 347, Lord Redesdale said a court of equity frequently decrees specific perform[* 467 ] ance, * when the action at law has been lost by the default of the very party seeking the specific performance. To sustain an action at law, performance must be averred, according to the very terms of the contract. And again, in the case of Lennon v. Napper, 2 Sch. & Lef. 684, he reiterates the same doctrine, that courts of equity in all cases of contracts for lands, have been in the habit of relieving, where the party from his own neglect, had suffered a lapse of time, and from that and other circumstances, could not sustain an action to recover damages at law; for, at law, the party plaintiff must have strictly performed his part of the contract. And in the case of Wilde v. Fort and others, 4 Taunt. 334, the rule is recognized that if the vendor of an estate at auction does not show a clear title by the day specified, the purchaser may recover back his deposit, and rescind the contract, without waiting to see whether the vendor may ultimately be able to establish a good title or not. A purchaser is not bound to accept a doubtful title.

From these authorities it may be laid down as a settled rule that at law, to entitle the vendor to recover the purchase-money, he must aver in his declaration a performance of the contract on his part, or an offer to perform at the day specified for the performance. And this averment must be sustained by proofs, unless the tender has been waived by the purchaser.

Bank of Columbia v. Hagner. 1 P.

The time fixed for the performance of the contract in this case must be understood to have been the 1st of January, 1820. The payment of the consideration money was to have been completed on that day, and no part of it having been paid, the defendant had a right to abandon his contract, unless the plaintiffs were then ready and offered to perform on their part, of which there was no evidence whatever offered upon the trial. They have attempted, however, to show that a tender of a deed was rendered unnecessary, by reason of the letter of the defendant of the 8th of May, 1821, in which he gave notice of rescinding the contract. But this letter can have no such effect. It was written sixteen months after the time fixed for the delivery of the deed, and when the defendant had a right to rescind the contract. If before the period had arrived when the deed was to be delivered, the defendant had declared he would not receive it, and that he intended to abandon the contract, it might have dispensed with the necessity of a tender, as the conduct of the defendant might in such case have prevented the act from being done; and he who prevents a thing from being done, shall never be permitted to avail himself of the non-performance which he himself had occasioned. But that rule can never apply, except

in cases where the act which is construed into a waiver, [468] occurs previous to the time fixed for performance.

The possession taken of the lots by the defendant could, at most, only be considered a circumstance from which to infer that he considered the contract closed, but could not deprive him of the right of relinquishing it, and restoring the possession, if the plaintiffs were unable to make a title to him, or neglected to do it. The possession was taken, doubtless, under a belief that the contract would be performed by the plaintiffs, and a full title conveyed to him; but if the contract was unexecuted, the defendant had a right to disaffirm it, and restore the possession; and would have sustained an action to recover back the purchase-money, had it been paid. Sug. on Vend. 173, 183, and cases there cited.

The plaintiffs have therefore clearly failed to show such a performance on their part, as to entitle them, in a court of law, to call upon the defendant for payment of the purchase-money.

But admitting that no objection in point of time lay to the tender of the deeds, the day before the commencement of the present action; no title was thereby conveyed to the defendant, or at all events not such a one as he would at any time have been bound to accept. It was a title derived from John Templeman, under the deed of the 31st of March, 1809. Whereas Templeman had previously conveyed the same lots to the plaintiffs, by his deed of 7th

Elmore v. Grymes. 1 P.

of March, 1807, in trust, with authority to sell the same for the payment of a debt due to the bank, and to pay over to him the surplus, if any there should be. The legal title to these lots is therefore still in the bank, and may be subject to the trust declared in the deed, from any thing that appeared upon the trial. And to allow the bank to recover the purchase-money, and turn the defendant over to a court of chancery to obtain a title, would be going further than any known principles in courts of law will warrant; no act whatever having been done by the plaintiffs, to transfer to the defendant the title vested in them under the deed of 1807.

To substantiate the present action under such circumstances, would be compelling the defendant to take a lawsuit, instead of the land for which he contracted. Judgment affirmed, with costs.

DOE on the demise of JOHN A. ELMORE, Plaintiff in Error, v. WILLIAM A. GRYMES AND JOHN J. BEATIE, Defendants in Error.

1 P. 469.

A circuit court of the United States has not power to order a peremptory nonsuit against the will of the plaintiff. He has a right to have his case submitted to a jury.

ERROR to the circuit court of the United States for the district of Georgia, in an action of ejectment.

After the plaintiff's evidence was closed, the defendants moved for a nonsuit, which was ordered by the court against the will of the plaintiff.

Wilde and M'Duffie, for the plaintiff.

Berrien, contrà.

[* 472 ]

*

[ * 471 ] MARSHALL, C. J., delivered the opinion of the court. The court has had this case under its consideration, and is of opinion that the circuit court had no authority to order a peremptory nonsuit, against the will of the plaintiff. He had a right by law to a trial by a jury, and to have had the case submitted to them. He might agree to a nonsuit; but if he did not so choose, the court could not compel him to submit to it. But the state of the record does not enable this court to render a final judgment, because the record is defective in not showing a judg ment of nonsuit entered in the circuit court. Although the bill of exceptions states that fact, yet the record does not contain the judg ment itself.

Elmore v. Grymes. 1 P.

The plaintiff may, therefore, apply for a certiorari to bring up a perfect record, or dismiss the present writ of error and proceed anew, as his counsel may think best for the interest of their client.

JOHNSON, J., dissentiente.

The only question of any importance in this cause is, whether a circuit court can, in any case, order a plaintiff to be nonsuited. I ordered the plaintiff below to be nonsuited because the evidence was so inadequate to maintain his suit; but had the jury found for him, ' I should have set aside the verdict, and ordered a new trial. The practice of the court from which this cause comes up is this: when the plaintiff has closed his evidence, the defendant is at liberty to move for a nonsuit, or proceed with his testimony. If he introduces evidence it is too late to move for a nonsuit; and the question always to be examined is, whether upon the evidence introduced by the plaintiff, admitting it to be true, the jury can find a verdict for him. So that it is in fact a substitute for a demurrer to evidence, or for a motion for instruction, that the plaintiff cannot recover upon the case made out by him in evidence.

There are several reasons why I must maintain that the courts of the sixth circuit have a right to exercise the power to order a nonsuit even against the will of the plaintiff, and why it would be wise, in all our circuits, to introduce the same practice.

It happens unfortunately for the defendant in error here, that a majority of the judges of this court have pursued a different practice in their circuits; but this, I must insist, is no sufficient reason for subverting, otherwise than by rule, the practice of other States in which this right has been recognized in the administration of justice, coevally with the existence of their courts. Such has been the case in the States of which the sixth circuit consists, and the acts of 1789,' and 1792,2 have adopted into the courts of the United States, of the respective circuits, not only the forms of process, but the "modes of proceeding" in suits known to the States respectively. That this comes under the denomination of a mode of proceeding, or, in other words, an established practice of the State composing the sixth circuit, appears to me incontrovertible.

* By what right, then, can this court reverse a judgment [ * 473 ] of that circuit, founded in a practice thus sanctioned by law? It does seem to me that the defendant below has a right in this judgment, vested by express statute law, and ought not to be put to the expense of this reversal. For what purpose is power given to this court to alter the practice of the circuits by such regulations as

11 Stats. at Large, 93.

2 Ib. 275.

Elmore v. Grymes. 1 P.

they may deem expedient, if such practice is not to be held legal until altered by a rule of this court?

This court surely does not mean to decide that such was not the received practice of that circuit; this would be a decision in the teeth of positive fact; and if the purport of the decision be that it is an illegal practice, the immemorial practice itself, and the Process Acts of the United States, furnish an express negative to such a decision.

The idea seems to be that it is a practice inconsistent with the relation in which our circuit courts stand to this court; that ours is not a Nisi Prius system, or something to that effect. What then? This court can alter the practice by a rule, but to overturn a judgment that has already been rendered under such a practice, I must respectfully contend approaches very near to ex post facto legislation, not adjudication, the province of which is to operate only upon existing laws. But it is not a practice appropriate exclusively to a Nisi Prius system, as is proved by this, that writs of error are sued out continually in England upon judgments on nonsuits, (see the cases cited in 1 Archb. Practice, 229-30,) and, though it had been, the States were at liberty to adopt it into their practice, although the Nisi Prius system be unknown to them. That they had adopted it is conclusive against this assumed incompatibility. And in practice it subserves the purposes of justice under our system as effectually as a bill of exceptions or a demurrer to evidence, and in several respects much better. It saves the practitioner from the weight of responsibility, which often results from being compelled to elect between a voluntary nonsuit, and a demurrer to evidence, or a bill of exceptions, which may terminate fatally to his client, and it not unfrequently saves his client from the fatal effects of negligence and misapprehension, either of himself or his attorney, or from surprise.

In point of convenience and expedition in the administration of justice I presume there cannot be two opinions. On this point, as far as exemplum doret, we may cite Great Britain, Massachusetts, and New York, with some confidence, against Pennsylvania, Maryland, and Virginia.

But it is contended that in England the plaintiff is not nonsuited, if he insists on answering when called. If the fact be admitted, what then? England is not altogether absolute in dictating to [*474] the courts of the United States, and if those of the States of the sixth circuit have asserted some independence in their rules of practice on this subject, I presume their right was unquestionable to do so.

But I want no other authority than the courts of Great Britain to justify the practice of the sixth circuit in this behalf. From the