The question as to the character in which a judge acts in a case of this description, is not a new one. It arose as long ago as 1792, in Hayburn's case, reported in 2 Dall., 409.

The Act of 23d of March, in that year, required the Circuit Courts of the United States to examine into the claims of the officers and soldiers and seamen of the Revolution, to the pensions granted to invalids by that Act, and to determine the amount of pay that would be equivalent to the disability incurred, and to certify their opinion to the Secretary of War. And it authorized the Secretary, when he had cause to suspect imposition or mistake, to withhold the pension allowed by the court, and to report the case to Congress at its next session. The authority was given to the Circuit Courts; and a question arose whether the power conferred was a judicial one, which the Circuit Courts, as such, could constitutionally exercise. The question was not decided in the Supreme Court in the case above mentioned. But the opinions of the judges of the Circuit Courts for the Districts of New York, Pennsylvania, and North Carolina, are all given in a note to the case by the reporter.

The Judges in the New York Circuit, composed of Chief Justice Jay, Justice Cushing, and Duane, District Judge, held that the power could not be exercised by them as a court. But 50*] in *consideration of the meritorious and benevolent object of the law, they agreed to construe the power as conferred on them individually as commissioners, and to adjourn the court over from time to time, so as to enable them to perform the duty in the character of commissioners, and out of court.

The judges of the Pennsylvania Circuit, consisting of Wilson and Blair, Justices of the Supreme Court, and Peters, District Judge, refused to execute it altogether, upon the ground that it was conferred on them as a court, and was not a judicial power when subject to the revision of the Secretary of War and Congress. The judges of the Circuit Court of North Carolina, composed of Iredell, Justice of the Supreme Court, and Sitgreaves, District Judge, were of opinion that the court could not execute it as a judicial power; and held it under advisement whether they might not construe the Act as an appointment of the judges personally as commissioners, and perform the duty in the character of commissioners out of court, as had been agreed on by the judges of of the New York Circuit.

These opinions, it appears by the report in 2 Dall., were all communicated to the President, and the motion for a mandamus in Hayburn's case, at the next term of the Supreme Court, would seem to have been made merely for the purpose of having it judicially determined in this court, whether the judges, under that law, were authorized to act in the character of commissioners. For every judge of the court, except Thomas Johnson, whose opinion is not given, had formally expressed his opinion in writing, that the duty imposed, when the decision was subject to the revision of a secretary and of Congress, could not be executed by the court as a judicial power; and the only question upon which there appears to have been any difference of opinion, was whether it might not be construed as conferring the power on

And

the judges personally as commissioners. if it would bear that construction, there seems to have been no doubt, at that time, but that they might constitutionally exercise it, and the Sec retary constitutionally revise their decisions. The law. however, was repealed at the next session of the Legislature, and a different way provided for the relief of the pensioners; and the question as to the construction of the law was not decided in the Supreme Court. But the repeal of the Act clearly shows that the President and Congress acquiesced in the correctness of the decision, that it was not a judicial power.

This law is the same in principle with the one we are now considering, with this difference only, that the Act of 1792 imposed the duty on the court eo nomine, and not personally on the judges. In the case before us it is imposed upon the judge, and *it appears from [*51 the note to the case of Hayburn, that a majoriy of the judges of the Supreme Court were of opinion that if the law of 1792 had conferred the power on the judges, they would have held that it was given to them personally by that description; and would have performed the duty as commissioners, subject to the revision and control of the Secretary and Congress, as provided in the law. Nor have Justices Wilson, Blair, and Peters, District Judges, dissented from this opinion. Their communication to the President is silent upon this point. the opinions of all the judges embrace distinctly and positively the provisions of the law now before us, and declare that, under such a law, the power was not judicial within the grant of the Constitution, and could not be exercised as such.

But

Independently of these objections, we are at some loss to understand how this case could legally be transmitted to this court, and certified as the transcript of a record in the District Court. According to the directions of the Act of Congress, the decision of the judge and the evidence on which it is founded, ought to have been transmitted to the Secretary of the Treas ury. They are not to remain in the District Court, nor to be recorded there. They legally belong to the office of the Secretary of the Treasury, and not to the court; and a copy from the clerk of the latter would not be evidence in any court of justice. There is no record of the proceedings in the District Court of which a transcript can legally be made and certified; and consequently there is no transcript now before us that we can recognize as evidence of any proceeding or judgment in that court.

A question might arise whether commission ers appointed to adjust these claims, are not officers of the United States within the meaning of the Constitution. The duties to be performed are entirely alien to the legitimate functions of a judge or court of justice, and have no analogy to the general or special powers ordinarily and legally conferred on judges or courts to secure the due administration of the laws. And, if they are to be regarded as officers, holding offices under the government, the power of appointment is in the President, by and with the advice and consent of the senate; and Congress could not, by law, designate the persons to fill these offices. And if this be the con

struction of the Constitution, then as the judge designated could not act in a judicial character as a court, nor as a commissioner, because he was not appointed by the President, everything that has been done under the Acts of 1823, and 1834, and 1849, would be void, and the payments heretofore made, might be recovered back by the United States. But this question has not been made; nor does it arise in the case. It could arise only in a suit by the United 52*] States to recover back the money. And as the case does not present it, and the parties in terested are not before the court, and these laws have for so many years been acted on as valid and constitutional we do not think it proper to express an opinion upon it. In the case at bar, the power of the judge to decide in the first instance, is assumed on both sides, and the controversy has turned upon the power of the Secretary to revise it; and it is in this aspect of the case that it has been considered by the court in the foregoing opinion.

In pursuance of this Act of Congress, the case of Yale Todd was brought before the Supreme Court, in an amicable action, and upon a case stated at February Term, 1794.

The case was docketed by consent, the United States being plaintiff and Todd the defendant. The declaration was for one hundred and seventymoney had and received by the defendant to the two dollars and ninety-one cents, for so much use of the United States; to which the defendant pleaded non assumpsit.

of May, 1792, the defendant appeared before the *The case as stated, admitted that on the 3d [*53 Hon. John Jay, William Cushing, and Richard Law, then being judges of the Circuit Court held at New Haven, for the District of Connecticut, then and there sitting, and claiming to be commissioners under the Act of 1792, and exhibited the vouchers and testimony to show his right under that law to be placed on the pension list; and that the judges above named, being judges of the Circuit Court, and then and there sitting at New Haven, in and for the Connecticut District, proceeded, as commis

ORDER.

This cause came on to be heard on the transcript of the record from the District Court of the United States for the Northern District of Florida, and was argued by counsel; on consideration whereof, it is how here ordered, adjudged and decreed by this court, that this cause be, and the same is hereby dismissed for the want of jurisdiction.

Cited 14 How., 120; 17 How., 505, 534; 18 How., 280: 1 Wall., 253; 7 Wall., 193; 9 Wall., 247; 1 Abb., U. S., 333.

take the testimony offered by Todd, which is set out at large in the statement, together with their opinion that Todd ought to be placed on the pension list, and paid at the rate of two thirds of his former monthly wages, which they understood to have been eight dollars and one third per month, and the sum of one hundred and fifty dollars for ar

rears.

The case further admits, that the certificate of

their proceedings and opinions, and the testimony they had taken, were afterwards, on the 5th of May, 1792, transmitted to the Secretary of War, and that by means thereof Todd was placed on the pension list, and had received from the United States one hundred and fifty dollars for arrears, and twentytwo dollars and ninety-one cents claimed for his pension aforesaid, said to be due on the 2d of September, 1792.

And the parties agreed that if upon this statement the said judges of the Circuit Court sitting as commissioners, and not as a circuit court, had power

OF THE COURT.

Since the aforegoing opinion was delivered, the attention of the court has been drawn to the case of the United States v. Yale Todd, which arose under the Act of 1792, and was decided in the Supreme Court, February 17, 1794. There was no official reporter at that time, and this case has not been printed. It shows the opinion of the court upon a question which was left in doubt by the opinions of the different judges, stated in the note to Hayburn's case. And as the subject is one of much interest, and concerns the nature and extent of judicial power, the substance of the decision in Yale Todd's case is inserted here, in order that it may not be overlooked, if similar questions should hereafter arise.

The 2d, 3d, and 4th sections of the Act of 1792, were repealed at the next session of Congress by the Act of February 28, 1793. It was these three sections that gave rise to the questions stated in the note to Hayburn's case. The Repealing Act provided another mode for taking testimony, and deciding upon the validity of claims to the pensions granted by the former law; and by the 3d section it saved all rights to pensions which might be founded "upon any legal adjudication," under the Act of 17, and made it the duty of the Secretary of War, in conjunction with the Attorney-General, to take such measures as might be necessary to obtain an adjudication of the Supreme Court on the validity of such rights, claimed under the Act aforesaid, by the determination of certain persons styling themselves commissioners."

It appears from this case, that Chief Justice Jay and Justice Cushing acted upon their construction of the Act of 1792, immediately after its passage and before it was repealed. And the saving and proviso, in the Act of 1793, was manifestly occasioned by the difference of opinion upon that question which existed among the justices, and was introduced for the purpose of having it determined, whether under the Act conferring the power upon

adjudge of and concerning the premises, that then judgment should be given for the defendant, otherwise for the United States, for one hundred and seventy-two dollars and ninety-one cents, and six cents costs.

The case was argued by Bradford, AttorneyGeneral, for the United States, and Hillhouse for the defendant; and the judgment of the court was rendered in favor of the United States for the sum above mentioned.

Chief Justice Jay and Justices Cushing, Wilson, Blair, and Paterson, were present at the decision. No opinion was filed stating the grounds of the decision. Nor is any dissent from the judgment entered on the record. It would seem, therefore, to have been unanimous, and that Chief Justice Jay and Justice Cushing became satisfied, on further reflection, that the power given in the Act of 1792 to the Circuit Court as a court, could not be construed to give it to the judges out of court as commissioners. It must be admitted that the justice of the claims and the meritorious character of the claimants would appear to have exercised some influence on their judgments in the first instance, and to have led them to give a construction to the law which its language would hardly justify upon the most liberal rules of interpretation. The result of the opinions expressed by the judges of the Supreme Court of that day in the note to Hayburn's case, and in the case of the United States v. Todd, is this:

1. That the power proposed to be conferred on the Circuit Courts of the United States by the Act of 1792 was not judicial power within the meaning of the Constitution, and was, therefore, unconstitutional, and could not lawfully be exercised by the courts.

2. That as the Act of Congress intended to confer the power on the courts as a judicial function, it could not be construed as an authority to the judges composing the court to exercise the power out of court in the character of commissioners.

3. That money paid under a certificate from per

sons not authorized by law to give it, might be recovered back by the United States.

The case of Todd was docketed by consent in the Supreme Court; and the court appears to have been of opinion that the Act of Congress of 1793, directing the Secretary of War and AttorneyGeneral to take their opinion upon the question, gave them original jurisdiction. In the early days of the Government, the right of Congress to give original jurisdiction to the Supreme Court, in cases not enumerated in the Constitution, was maintained by many jurists, and seems to have been entertained by the learned judges who decided Todd's case. But discussion and more mature examination has settled the question otherwise; and it has long been the established doctrine, and we believe now assented to by all who have examined the subject, that the original jurisdiction of this court is confined to the cases specified in the Constitution, and that Congress cannot enlarge it. In all other cases its power must be appellate.

the said Fisher is in the city at this time; that defendant desired the clerk of this court to summon said Fisher, but that the marshal has not been able to find him and serve him with a subpoena. Nevertheless, it appeared that on the next day, Fisher was present in court and examined. The conclusion of the first bill of exceptions was as follows, viz.:

The defendant further declares that he has not induced or consented to said Fisher's absence; to all of which the defendant offered to swear, but the court overruled the motions on the ground that it appeared, by the declaration of the counsel for defendant, that the witness Fisher was, the day before, seen by him in the City of New Orleans, and therefore the court declared that the testimony of the said witness would be received before the conclusion of the trial. Accordingly, the next morning, the wit

Error,

v.

NATHANIEL B. HILL.

Writ of error for mere delay-Damages. Where the only exceptions taken in the court below, were to the refusals of the court to continue the case to the next term, and it appears that the continuance asked for below and the suing out the writ of error, were only for the purpose of delaying the payment of a just debt, and no counsel appeared in this court on that side, the 17th rule will be applied and the judgment of the court below be affirmed with ten per cent. interest.

THIS case was brought up by writ of error from the Circuit Court of the United States for the Eastern District of Louisiana.

Hill was a citizen of South Carolina, and sold two slaves to Barrow, a citizen of Louisiana. Barrow gave his note for $2,000, dated 12th of February, 1848, payable twelve months after date. When due, it was protested. Hill then filed his petition in the Circuit Court of the United States. Barrow's answer admitted the execution of the note, but alleged that the negroes were unsound. In April, 1850, the cause came on for trial. The counsel for the defendant moved the court for a continuance "on the ground that William C. Fisher, a material witness for the defendant, is absent or does not appear on the trial of this cause; that

NOTE.-Error; the Supreme Court will not review the discretionary action of the court below.

If the rejection of evidence is a matter resting in the sound discretion of the court, this cannot be assigned as error. Philadelphia & Trenton R. R. Co. v. Stimpson, 14 Pet., 448.

Discretionary rulings upon evidence are not subject to review. Parsons v. Bedford, 3 Pet., 443; Turner v. Yates, 16 How., 14.

The decision of the court below to set aside a verdict in consequence of an irregularity committed by the jury, being within the discretion of the court, is not examinable on error. United States v. Gillies, Pet. C. C., 159; 3 Wheel. Cr. Cas., 308.

The granting or refusing to grant a motion for new trial rests wholly in the discretion of the court where it is made, and the action of such court cannot be questioned or reviewed on error. Henderson v. Moore, 5 Cranch, 11; Marine Ins. Co. of Alexandria v. Young, 5 Cranch, 187: Barr v. Gratz, 4 Wheat., 213: Blunt v. Smith, 7 Wheat., 248; Brown v. Clarke, 4 How., 4: Warner v. Norton, 20 How., 448; United States v. Gibbert, 2 Sumn., 19; Henry v. Ricketts, I Cranch, C. C., 545; Hall v. Weare, 92 U. S. (2 Otto), 728; Philip v. Gardner, 1 MacArthur,

165.

The Supreme Court will not hear, on writ of error, matters which are properly the subject of

amined by the counsel of both defendant and plaintiff, and his testimony was commented on by counsel before the cause was finally sub mitted; whereupon the counsel for the defendant excepts to the ruling of the court, and tenders this his bill of exceptions, praying that the same may be signed and made a part of this record. THEO. H. MCCALEB, United States Judge.

*The second bill of exceptions was as [*55 follows:

Be it remembered, that at the trial of this cause before the court, at the term aforesaid,

the counsel for the defendant moved the court for a continuance on the grounds that a commission was issued by this court on the 11th March, 1850, to take the testimony of William S. Green, a resident of the State of Kentucky, but supposed to be at that time on a plantation owned by said Green in the Parish of Terrebonne, Louisiana. That the testimony of said Green is important, material and necessary to the defense. That due diligence has been used to have this testimony of said Green taken, but that the said commission has not yet been returned to this court; to all of which the defendant offered to swear, but the court overruled the motion, on the ground that the commission had issued some time after issue joined, and subject to the right of the adverse party to

application for new trial. Freeborn v. Smith, 2 Wall., 160.

The cross-examination of a party, as well as that of a witness, is subject to the control of the court in its discretion; and the exercise of that discretion is not reviewable on error. Rea v. Missouri, 17 Wall.. 532.

The enforcement or disregard of a rule of the I court below is a matter of discretion with that court, and not reviewable on error. Life Ins. Co. v. Francisco, 17 Wall., 672.

The allowance and refusal of amendments in the pleadings and most incidental orders made in the progress of a cause, before trial, are in the discretion of the court making them. The Supreme Court has always declined interfering in such cases. Wright v. Hollingsworth, 1 Pet., 168; White v. Wright, 22 How., 19; Eberly v. Moore, 24 How., 147; 4 Čranch, 237; 5 Cranch, 11, 187; 4 Wheat., 220; 20 How., 264.

The decision of the court below, granting counsel the right to open and close the argument to the jury will not be reviewed on appeal. Hall v. Weare, 92 U. S. (2 Otto), 728.

Granting a rehearing, or granting or dissolving a tempory injunction, rests in the sound discretion of the court, and furnishes no ground for an appeal. Buffington v. Harvey, 95 Ü. S. (5 Otto), 99.

have the case tried when regularly docketed; and also upon the ground that a sufficient time had been allowed for the return of said commission. Whereupon the counsel for defendant excepts to the ruling of the court and tenders this his bill of exceptions, praying that the same may be signed and made a part of the the record. THEO. H. MCCAL&B, United States Judge. After hearing Fisher and another witness for the defendant, and a witness for the plaintiff, the court gave judgment for the plaintiff; whereupon the cause was brought up to this court upon the two exceptions above mentioned.

It was argued by Mr. Venable for the defendant in error, no counsel appearing for the plaintiff in error.

Mr. Venable said: The only error assigned is, that the judge below overruled a motion for a continuance, for reasons set forth in the bill of exceptions; an application for a continuance being addressed to the discretion of the court, it is submitted that, in this case, that discretion was soundly exercised; and the defendant prays that the judgment be affirmed. And as it appears that this writ of error was sued out for delay, he further asks that damages may be awarded him, according to the seventeenth rule of this court.

Mr. Chief Justice Taney delivered the opinion of the court:

This case is brought up by a writ of error. directed to the Circuit Court of the United States for the Eastern District of Louisiana. 56* *No counsel has appeared in this court for the plaintiff in error. The case has been called in its regular order for argument, and thereupon the counsel for the defendant has, under the 19th rule of the court, opened the record and argued the case, and prays an affirm ance of the judgment, with ten per cent. damages, on the ground that the writ of error was issued merely for delay.

Upon looking into the record, it appears that two exceptions were taken in the court below by the plaintiff in error; and both of them were taken to the refusal of the court to continue the case to the next term.

SO

It has been repeatedly decided in this court, that a motion for the continuance of the cause addresses itself to the sound judicial discretion of the court, and its decision, for or against the motion, cannot be assigned as error in this as errore, that it is unnecessary to refer to cases to prove it. The decision of the Circuit Court, therefore, upon the motions above mentioned, is no ground for reversing the judgment, and does not afford any reasonable foundation for suing out this writ of error.

And, upon examining the statement in the exceptions, and the reasons assigned by the court for its refusal, the inference would seem to be irresistible, that the continuance was not asked for by the plaintiff in error, under the expectation that it would enable him to obtain testimony material to his defense, but to delay the payment of a just debt, and that the writ of error was sued out for the same purpose. The case, therefore, falls within the 17th rule of the court, and the judgment is accordingly

affirmed, with ten per cent. interest on the amount, from the rendition of the judgment in the Circuit Court until paid.

ORDER.

This cause came on to be heard on the transcript of the record from the Circuit Court of the United States for the Eastern District of Louisiana, and was argued by counsel for the defendant in error; on consideration whereof, it is now here ordered and adjudged by this court, that the judgment of the said Circuit Court in this cause be, and the same is hereby affirmed. with costs and with interest, at the rate of ten per centum per annum on the amount, from the rendition of the judgment in the Circuit Court until paid.

*JOHN D. BRADFORD AND BEN- [*57 JAMIN M. BRADFORD, Appellants,

v.

THE PRESIDENT, DIRECTORS AND COMPANY OF THE UNION BANK OF TENNESSEE.

Substitution of one contract for another-rights of parties under-Retention of bill to complete equity without cross bill.

Where there was a contract for the sale of land for the purchase of which indorsed notes were given, but before the time arrived for the making of a deed, the purchaser failed, and the liability to pay the note became fixed upon the indorser; and a new contract was made between the vendor and the indorser, that, in order to protect the indorser, he should be substituted in place of the original purchaser, fresh notes being given and the time of payment extended, evidence was admissible to show that the latter contract was a substitute for the former.

A part of the land having been sold for taxes

whilst the first set of notes was running to maturity (the vendee having been put into possession), and the vendor being ignorant of that fact when the contract of substitution was made, all that the indorser can claim of the vendor, is a deed for the land subject to the incumbrances arising from the tax sales. The notes given for the substituted contract must be paid.

The indorser having filed a bill for a specific performance upon the title bond, which he had received from the vendor, this court will not content thus give rise to further litigation, but proceed to itself with dismissing his bill without prejudice,and pass a final decree, founded on the above principles.

THIS was an appeal from the District Court Tor was an Cost of

trict of Mississippi, sitting as a court of equity. The facts are sufficiently stated in the opinion of the court.

It was argued by Mr. Volney E. Howard for the appellants, and by Messrs. Carlisle and Coxe for the appellees.

The counsel for the appellees made the following points, namely:

1. The defense could not have been made at law in this case, because a court of law has no power to rescind a contract for part failure of consideration, especially on the ground that the inducement to the whole purchase had been defeated by such part failure of title. (Greenleaf v. Cook, 2 Wheat., 13; 2 Kent, 476; Parham v. Randolph, 4 How, Miss. Rep., 435.)

2. Although judgment had been obtained

at law, the complainant had a right to a good and valid title when he paid the money, and to ask the aid of a court of chancery for that purpose, especially against a foreign corporation seeking to enforce the judgment, after a tender of the money, demand and refusal of title. The bill should not, therefore, have been dismissed. He was not compelled to take part of the estate, if a main inducement to the pur chase had failed. (2 Story Eq., sec. 778.)

3. The Bank does not even tender a deed or title for that portion of the land of which they are seised, or a quitclaim for that which was sold for taxes. It does not admit of doubt, that the court erred in not decreeing some sort of 58*] conveyance by the *Bank, on the pay ment of the purchase money. Bradford could not be put in a worse position than Brown, if he ought to suffer for Brown's neglect in not paying the taxes.

4. Whether the title bond to Bradford is to be viewed as a distinct independent contract, or a mere novation of that of 1841, the court cannot look beyond the bond for its terms, nor vary them by parol. It is a covenant, that the Bank was seised of the legal title in 1845. and would make a good and valid title when the notes were paid by Bradford. It was the consideration of the new notes, and the substitution of John D. and B. M. Bradford for the former and Brown. It was a contract of the Bank's own election, and by which it obtained a new and additional security. (1 Greenl., sec. 276-277.)

It is not competent to show a consideration essentially different from that recited in the deed. (Greenl., sec. 26; 4 Greenl., Cruise, 254, note 1; Id., p. 24, note; 4 Cow., 431.)

Parol additions to a deed are rejected. (1 Sugd., 179, 153.)

5. The tax sales appear to have been regular, and in conformity to the laws of Mississippi; and, if so, vested in the purchasers the title to one half of the land. By the laws of that State, the assessment is a lien upon the land. (Hutch. Code, p. 176-177.)

The defendants admit they cannot make a good title to one section, if the tax title is valid. The vendee cannot be compelled to take a title thus incumbered as a good and valid title. It is selling him a lawsuit with an adverse possession.

Equity has jurisdiction to decree specific performance of a bond to convey lands (4 Pick., 1; Mills v. Metcalf, 1 A. K. Marsh., 477), and the prayer may be for specific performance or rescission. (Id., Woodstock v. Bennett, 1 Cow., 711; vide, also, Stevenson v. Maxwell, 2 Comst., 408.) As to part performance and damages, and decree against parties residing out of the State. (Sutphen v. Fowler, 9 Paige, 280; 11 Id., 277.)

The vendee ought not to be compelled to take a title with such a cloud over it; neither should he be left to a suit on his bond against a corporation resident in another state. (7 Blackf., 31; 5 Mon., 189.) It is a clear case for equitable relief, either by a total recession of the contract or specific performance with damages. Certainly, the court should have decreed a conveyance upon the payment of the money.

Mr. Coxe, for the appellees: The questions arising upon the record present no great diffi

culty. It is a case of clear and undisguised fraud on the part of complainants. The court below ordered the bill to be dismissed, and such, it is confidently believed, will be the result in this court.

*The first question which arises was [*59 presented in the court below on the demurrer, and is again set up in the answer. It is, that if the allegation of complainants be true, as made in the bill, the facts, as averred, would have constituted a perfect defense in the action at law in which the judgment was obtained, which the bill seeks to enjoin; and that complainants, who were defendants in that action, having omitted to take such defense at law, or, if they did, having failed to sustain it, equity will not now interpose in their behalf.

In cases of fraud it is perfectly well settled, that the jurisdiction of the courts of law and of equity is concurrent. It becomes exclusive only when the case is brought before the one or the other. (Gregg v. Lessee of Sayre et al., 8 Pet., 244; Lessee of Swayze v. Burke, 12 Pet.. 11; Russell v. Clark's Executors, 7 Cranch, 69; Lessee of Rhoades v. Selin, 4 Wash. C. C. R., 715; 9 Wheat., 403, 532.)

In the present case the fraud which is in proof, is one committed by complainants, noue such as is alleged being sustained even by a shadow of proof against defendants. If fraud, a good defense at law. (Gilpin v. Smith, 11 Sm. & Marsh., 129, and cases cited.)

In the bill claiming relief, complainants aver that an actual sale and purchase of certain real estate were made, and that at the time this contract was concluded, the property which he purchased was in part held in possession under an adverse claim with color of title, and has ever since been thus held, so that the purchaser has never been able to obtain possession or enjoy the benefit of his purchase. If this allega tion is true, Bradford had a complete defense at law in the action upon his bonds; for such an adversary holding, places him in precisely the same predicament as if he had gone into possession under his purchase and then been ousted by a paramount title. In Duvall v. Craig, 2 Wheat., 46, 61, it was held by this court, that if a grantee be unable to obtain possession in consequence of an existing possession or seisin by a person claiming and holding under an older title, this would be equiv. alent to an eviction. The local law is in accordance. (Dennis v. Heath, 11 Sm. & Marsh., 206.)

Again, he alleges that the Bank cannot make him a good title to the property for which he contracted. Admitting that, under the circumstances, this would furnish a valid defense. yet it was equally available at law. (7 Sm. & Marsh., 340.) Had he tendered the purchase money, and demanded such deed as he claims under the bond, and it was then made to appear that the Bank was unable to make a good title, his defense at law would have been complete. (Liddell v. Sims, 9 Sm. & Marsh.. 596.) Nor was it necessary for him to have proceeded thus far, for the simple *fact that the Bank[*60 did not demand payment and tender a deed, would have furnished a complete defense. (Washington v. Hill, 10 Smedes & Marsh.. 560.)

Having thus, upon the facts which the bill