dissenting opinion:

In stating the reasons why I can not concur in the opinion of the court, in this case, it will be necessary to examine:

1. The consequences of the non-performance of the contract- on* the 1st of September.

2. The effects of the assignment to the complainant Curtis.

3. The operation of the judgment at law on. the rights of the* parties to the present suit.

1. The covenants in this contract are simultaneous. The deed-was to be executed and delivered to Cisna on or before the 1st of September, upon his then paying the first installment, and securing the residue by bond and mortgage. Neither party could charge-the other with a breach, so as to sustain an action at law, till he had tendered a performance, for till then they were in pari delicto. If a man gives credit and relies on his remedy, he is left to that remedy; but in this case no credit was given. The vendor was-not to part with the title, nor the vendee with the money, till each was secured. In Jones v. Berkly, and Hotham v. The East India Company, Doug. 665,and 1 Term, 633,Lord Mansfield decides-that the dependence or independence of covenants must be col*439, 440lected from the evident sense and meaning of the parties, and that however transposed they *may be in the deed, their precedency must depend on the order of time in which the intent •of the transaction requires their performance. Every person will •decide from the first reading of this contract that neither party intended to trust the other, or to render himself liable to perform in consideration of his remedy, on the contract, but in consideration of an actual performance by the other party. Wilkins en.gaged to deliver the deed to Cisna, on the 1st of September, upon his then paying, etc. It is not pretended that either party tendered a performance on that day, or that Cisna, on any subsequent day, offered to perform, or was ready or willing to perform, or that he made any attempt, either to execute or disaffirm the contract, prior to the tender of the deed by Wilkins. It seems that Wilkins, on the 1st of September, was at Mount Yernon, where the contract was made and deposited for safe keeping, and where he understood the parties were to meet for the purpose of performing it, and he avers that he was then ready to execute the ■deed. Cisna not attending, Wilkins executed a deed at Mount Yernon, seven days thereafter, and had it tendered to Cisna, at his residence, in Lancaster. During the succeeding winter a •second tender was made of the deed, and after the assignment an offer was made by the assignees to perform the contract on the part of Wilkins. On these facts the question arises whether this contract has been forfeited by any laches of Wilkins, so as to bar him or his assignees from a specific performance. Admitting that Cisna was under no obligation to attend on the 1st of September .at Mount Yernon, where the contract, which consisted of but one part, was deposited, and where the land, of which delivery was to be made, was situate, and that the understanding of Wilkins, on ■that point, was incorrect, it would by no means follow that there has been that kind of laches that ought to induce a court of equity to refuse their aid. Time is not usually considered as being of the essence of contracts, though it may be made so by the stipulation of the parties. Equity will relieve in cases of forfeiture, when ■compensation can be made, and the default is only in time; and the books abound in cases where chancery has enforced agreements, although the plaintiff had failed to perform on the day fixed on in the contract. It will not be contended by me that time is of no moment, *and that men may fulfill their en*441gagements when they please. Such a principle would be fraught with mischief. It would introduce that kind of negligence and disregard of obligations that would be as inconvenient to the business of society as it would be injurious to public morals. The modern rule on this subject seems to be, that a party who has not performed his undertaking, on the day appointed, may nevertheless, claim the aid of a court of chancery, if he can show a reasonable excuse for his omission; or if the opposite party has acquiesced in the delay, unless there has been such a change of circumstances, as would render a specific performance manifestly inequitable. In the case of Vernon v. Stephens, 2 P. W. 66, the complainant, the purchaser, had not paid the money on the day stipulated, yet he obtained a decree, the chancellor observing that if the defendant got his money, interest, and cost, he would have no reason to complain ; that lapse of time in payment might be compensated with interest and cost; that in cases where there has been no acquiescence-by the defendant, nor any specific apology offered by the complainant, courts have decreed a performance on the ground that there had been no unnecessary delay practiced by the plaintiff. It • is also said the title to an estate requires so much clearing and inquiry, that unless substantial objections appear, not only as to time, but as to an alteration of circumstances affecting the value of the thing, or such as arise from .the conduct of the parties themselves during the time, the objection can not be sustained. Newland, Covenant, 235.

In the case of Langford v. Pitt, 2 P. W. 629, the complainant not only had not tendered a conveyance on the day stipulated, but had it not in his power to do so, by defect of title. The master of the rolls decided, that it was sufficient if the party contracting to sell had a good title at the time of the decree, and in the case of Stourton v. Meers, cited in the last case, it appeared that the complainant, the vendor, had not a perfect title at the time of the articles, or even at the time of the decree, and the court granted him further time. The title was afterward perfected, and the defendant decreed to be the purchaser. In the case of Wynn v. Morgan, 7 Ves. 202, it was held, that as no unnecessary delay was imputable to the complainant, a specific performance ought not to be refused, because he had not a good title at the *time of the contract, or even at the filing of the bill, and the title having been perfected, the court decreed a specific performance. It was de~ *442-cided in the cases of Williams v. Thompson, and Gregson v. Riddle, referred to in Newland, 238, that even though a clause be inserted in an agreement, declaring it void* if the stipulation as to time be not complied with, still equity will not consider the performance at the day an essential part of the contract. In the lat ter case, Lord Thurlow said, 11 It has been often attempted to get rid of an agreement on this ground, but never with success. The ■most that has ever been made of the circumstance of an agreement, not being carried into execution at the time agreed on is, it has been held to be evidence of the waiver of the agreement, but has never been held to make the agreement void.” It is not to be inferred, however, from these cases, that time, in a contract, is ■wholly immaterial, and that parties may trifle with their agreements on a calculation that they may perform them as may be most convenient to themselves. If delay takes place, some satisfactory reason must be given for it, or it will be considered as a waiver of the bargain. There is a great diversity in the causes that give rise to delay in the performance of contracts, and each case must depend, more or less, on its own circumstances ; but it is believed no case can be found, in which equity has considered "the day wholly immaterial. Newland, in his treatise, 242, states the rule to be, that when a party who applies for a specific performance of a contract, has omitted to execute his part of it, for a ■considerable time after the day appointed for that purpose, without being able to assign sufficient reasons to justify, or excuse his -delay, the court will not compel a specific_ performance, and the reason given is, that the court consider his conduct as evidence of an abandonment of the agreement. The equity of this rule has been extended to contracts, in which no day was specified, where ■the complainant had consumed much time unnecessarily, and a material alteration had taken place in the value of the property. Guest v. Homfray, 5 Ves. 818. In that case, the master of the rolls observed, that if the polaintiff stands acquitted of the charge of practicing unnecessary delay, in making out his title, the court will not refuse him a specific performance, because he afterward ^suffers a period of time to elapse before he files his bill. The opinion of Chancellor Kent, in Benedict v. Lynch, does not clash with the principle here stated. It will be found, on examination, that there is no similarity between the facts of that case -and those which exist in this. Benedict had not merely negleeted *443a performance for a few days, but for several years. The contract contained an express stipulation, that if the plaintiff failed, in either of his payments, the agreement was to be, void. The plaintiff had admitted his inability to perform, and had agreed that if defendant would permit him to remain on the premises, one year-, he would then give up the possession. He was not only guilty of gross negligence, but the facts of the case amounted to an actual abandonment. Here the contract was to be performed by both parties, on the 1st September. The land was contiguous to Mount Yernon, where the contract was made and deposited. The complainant understood the parties were to meet at that place, to execute the contract, and attended on the day, as he avers, ready to do so. The defendant did not attend. Seven days .afterward the complainant executed a deed, which was tendered to defendant at his residence, and afterward at Mount Yernon. These facts show that the delay of the tender was neither unreasonable nor unaccounted for, and every presumption of an abandonment is excluded. I therefore conclude that the objection as to the time of the tender can not be sustained.

2. The second inquiry is, how far the rights of the parties have been affected by the assignment to Curtis.

It appears from the bill and exhibits, that on the first of February, 1817, which was several months after the deed had been, executed and tendered to Cisna, and after his refusal to -perform the contract, Wilkins, being pressed for money, was under the necessity of selling his interest in the contract, and did sell and assign it to Silliman and Curtis, authorizing them to make use of his name in any suit that might be thought necessary; at the •same time the deed executed and tendered to Cisna was delivered to them, with authority to deliver it to Cisna, should any compromise take place. Silliman afterward sold and assigned all his interest in the contract to Curtis, for whose benefit *the suit is prosecuted. These are the material facts in relation to the assignment.

On the part of the defendant, it was contended that by this assignment Wilkins put it out of his power to perform his covenant, and that the defendant could not be required to accept a conveyance from an assignee.

It is not easy to perceive the force of this objection; Wilkins Rad a right to sell his interest in the contract, provided he did it *444so as not to prejudice the rights of the defendant. This appears to be the fact, as it is one of the stipulations of the agreement, that the deed first executed and tendered to Cisna should be put into the hands of the assignees, with power to deliver it to Cisna on his performing the original agreement. There was no necessity, therefore, of a'conveyance from the assignee to the defendant. The title offered is from Wilkins himself'. The object of the assignment was not to vest the title in the assignee, but the money due on the contract with Cisna; and with that view the deed executed on the 7th of February was delivered, in the form of an escrow, to be delivered over to Cisna on his complying with the contract. A deed generally takes effect from the delivery, but this rule is departed from, and the doctrine of relation is resorted to, when it becomes necessary to prevent fraud, or give effect to the intention of the parties, if third persons are not injured.

A deed delivered as an escrow usually takes effect from the performance of the condition and the actual delivery to the grantee, but the fiction is always resorted to, and the deed considered as taking effect from its execution, when justice requires it.

In the case of Butler and Baker, 3 Co. 35, it was decided that a. deed delivered to a third person, as an escrow, and afterward delivered to the grantee, should relate back, and take effect from the first delivery, for the purpose of giving effect to the deed; as if a feme sole, having made a deed, should marry after the conditional delivery, and before the delivery to the grantee; or if a grantor, whether feme sole or not, should die between the first and second delivery. In these cases, the deed would relate back to the first delivery. This is done to prevent injury, and to ^uphold the deed, or in the language of Coke, “from necessity ut res magis ■valeat quam pereat. To this intent, by fiction of law, it shall he a deed ah initio, and yet in truth it was not his deed till the second delivery.” In the case of the lessee of Woolams v. Clapham, 1 Term, 600, it was hold, that the title of the surrenderee, after admittance, was perfect, as from the time of the surrender, and should relate back to it. That is, although the title, in strictness of law, is not complete till the admittance, the title shall relate back, and take effect from the time of the surrender.

So in the case of Hermitage v. Thompkins, 1 Lord Raym. 729, it was ruled, that if a man demises lands by indenture, in which he has no interest, and afterward buys them, he will be estopped,, *445unless the want of title appears in the recitals of the lease. In that case, the fiction carried back the grant to the lessor to a period antecedent to its daté, to give effect to the lease made at a time when the lessor had no pretense of title. In the case before us, the deed to Cisna was executed on the 7th September, and tendered shortly after, and on the first of February following, when the contract was assigned, it was delivered to Curtis, the assignee, as an escrow for the use of Cisna, and is now brought into court for that purpose; and, if accepted, must relate back to the first delivery, or, if necessary, to its date. Curtis, by the terms of' the assignment, was made the instrument for passing the title direct from Wilkins to Cisna. He disavows all claim of title in himself, and produces the deed, praying for such a decree as will make it operative, to vest the title in Cisna. There is, therefore, no ground for the objection, that the title must pass through a third person; but if such an inconvenience could result from the assignment, the decree can be so framed as to guard against it. Had Curtis purchased for the avowed purpose of overreaching the right of Cisna, he would have been a fraudulent purchaser, as he had notice of the contract, and he would have held the title subject to the equity of Cisna.

The deed of the 7th September, as we have seen, was delivered to Curtis as an escro.w, and it was .not the intention of the parties that the title should vest in him, unless that deed should become inoperative by a failure on the part of *Cisna; as Wilkins had a right to assign his interest, this court ought to protect it in the hands of his assignee. But it can not be necessary to pursue this subject further. The case of Hashbolt v. Porter, 2 Pow. 138, seems to establish the principle, that an assignee, not being a party to a suit against his assignor, is not bound by the decree rendered, but may go into the whole merits, in a subsequent suit, in which he is a party.

3. The next inquiry is, whether the judgment at law can operate as a bar to the decree prayed for by the bill. It appears by the exhibits, that after the assignment, the tender, and the death of Cisna, his administrator commenced an action of assumpsit against Wilkins, for the purpose of recovering from-him the value of the sheep delivered on the contract. The declaration contained but one count, charging that defendant was indebted to Cisna, in his life, in the sum of $6,000, as well for divers goods sold and de*446livered, as for one hundred sheep sold and delivered by the said Thomas to the said Francis, and also for money by the said Francis before that time had and received to the use of the said Thomas. The defendant pleaded the general issue, on which there was a verdict and judgment for the plaintiff. It is contended that this judgment is final, and that it must restrain the court from investigating and deciding the merits of the case now before them, on the ground, that when a court of law has competent jurisdiction, and can give full relief, its decision is final. Without attempting to controvert this principle, I will observe that it does not and can not apply to this case, because the parties are different — the subject matter is entirely different, and the court that rendered the judgment had no jurisdiction of the case now presented, nor had they power to grant the relief prayed for in this bill. The bill presents a contract for the sale of real estate, involving the rights of an assignee, and the various questions growing out of a non-performance on the day stipulated, and it prays for the specific execution of the contract. To claim for the court that rendered the judgment a power to hear and decide these matters, and to grant the relief prayed for, would be neither more nor less than to convert it into a court of chancery, and vest it *with all the powers that distinguish such a court from a court of common law.

1. The parties are not the same. This bill is filed exclusively for the benefit of Curtis. The suit at law was against Wilkins alone ; Curtis was not a party, and therefore was not and could not have been heard, nor was it in his power to compel Wilkins to defend the suit. It is true that courts of law will protect the rights of assignees- as far as their forms of proceeding will permit, but these fall far short of what was necessary for the security of this assignee, had his claim been before the court. To conclude a person by a decision at law, he ought to have a day in court, and an opportunity of being heard. As to the complainant, Curtis, this has not been the case ; he is now heard for the first time, and for the first time his claims are presented for examination. By the rules of common law, a record can not be received as evidence, unless it be between the same parties, and involve the same point. Hence the record of a conviction for an assault and battery can ’ not be given in evidence in an action for damages against the same defendant for the same assault and battery.

*4472. The subject matter of the suits is not the same, nor is the object the same. The suit at law, we have seen, was an action of assumpist, founded on a sale of goods and sheep, and the object was to recover the value of those goods and sheep. The subject matter of the bill is a contract for the conveyance of real estate, and the object of it is a specific performance of that contract. I am aware that the sheep had been delivered as a payment on the contract, but that circumstance can not affect the case. We have seen that the contract had neither been forfeited nor abandoned by Wilkins; that it was not the ground of the action, nor necessarily nor directly before the court; nor was there anything in the record having a perceptible allusion to it. But the bill in chancery is founded directly on the contract. It brings before the court every circumstance connected with it, and the right of the complainant to enforce it. In the one case, the court decided on the right of Cisna to recover from Wilkins the value of certain sheep delivered on a contract; in the other, they are called upon to decide, whether Curtis is not entitled to the specific performance of *that contract. The subject matter, and the object of the first suit, was within the jurisdiction of the court that decided it; but neither the subject matter, nor the object of the present suit, was within their jurisdiction, nor could they have granted the relief here prayed for.

The fact that the representatives of Cisna have recovered a judgment for a sum of money, does not destroy the power of a court of chancery to investigate the equity of that judgment. This may be done without calling in question its correctness, in reference to the premises on which it was rendered: It frequently happens that such judgments are obtained because the only ground on which they could be resisted is not within the reach of a court of law. Whatever mighthave been theground on which the judgment in favor of Cisna was had, it would appear to be sufficient to sustain the jurisdiction of this court, and the right of the plaintiff to the relief he seeks, that he has made and supported a case that entitles him to a decree for a specific parformance, and that that decree can not be rendered without enjoining the judgment at law.. It might be inferred from the arguments of counsel, that it was considered by the court that rendered the judgment that the tender of a deed was a condition precedent; that Wilkins, having failed to tender on the 1st of September, could not avail himself of a *448subsequent tender in a court of law. If this were the case, and there appears to be no other ground on which a recovery on such facts as are now before us could have been had, it must put the question at rest, as it presupposes a want of power in the court that rendered the judgment to grant the defendant that relief which a court of equity is in the daily habit oí granting, nor can it affect the question to concede, that the court restricted their own powers unnecessarily. If, as a court of law, they held the defendant, Wilkins, strictly to a tender on the day named in the contract, it must have been from an actual or supposed want of that power which this court clearly possesses; and in either case, the merits of this complainant have not been heard or decided. It is a question that has been much litigated, how far'a' court of chancery can relieve a person against the consequences of an omission to perform his contract on the day stipulated. It is not therefore surprising, that a court of law, viewing these covenants as it is understood *they did, should have decided against hearing the only defense, on which a recovery could be resisted. The restriction imposed by that court, on its own jurisdistion, has compelled a resort to chancery, and it does not become us to say they have erred in deciding the limits of their own power.

It is admitted that the merits of a judgment can never be overhauled, in an original action, either at law or in equity. Such judgments are conclusive till reversed, or set aside, by a competent revising power; and I wish'it distinctly understood, that no attempt is made to sustain this bill on the ground of supposed error in the court of law. It is to be taken for granted that that court decided correctly, and that we, with the same case, and exercising the same extent of power, would have decided in the same way.

Disclaiming all right to examine the correctness of the judgment at law, the ground upon which I would sustain this bill is, that the relief it prays for could not be granted by the court at law, and that in consequence of rejecting the evidence, and with it the defense of Wilkins, on the supposition of a want of jurisdiction to hear and decide it, a judgment has been obtained against him, which, in equity and good conscience, ought not to be enforced. Yiewed in this light, the case seems to be stripped of'all difficulty, and to be placed on the ground on which chancery usually relieves against judgments at law. The case of Moses and Macferlan went *449further than is necessary, to support this bill. There an action at law was sustained, to recover back a sum of money, paid on the judgment of an inferior court, because that court had rejected the defense set up as not being within their jurisdiction. Here the same ground exists, and in addition to that circumstance the whole object of the bill is without the jurisdiction of a court of law, and no part of the case could have been examined by them with a reference to the decision now prayed for.

Inasmuch, then, as the parties, the subject matter, and the object of the suits are different; as the one now before us calls for the exercise of powers not possessed by a court of law, and as Curtis is an assignee, and was not a party to a former suit, I must believe, that the judgment is not a bar to the present suit, and that the plaintiff is entitled to the relief he prays for.

Opinion of the court, by

From the pleadings and evidence in this case it is manifest that the subject matter of the present controversy has been adjudicated by a court of law, in an action commenced by the present defendants against the complainant Wilkins. The object of the former suit was to recover back the consideration money which had been paid for the land, and could have been sustained upon no other principle than that the contract had been abandoned, or put an end to by the parties. In that case full defense was made, and precisely the same evidence exhibited on the part of the defendant as on the present occasion, with the exception of the testimony of a single witness. The testimony of this witness does not materially vary the facts. Having this evidence before them, the jury returned a verdict for the plaintiff, and upon this verdict the court rendered judgment. About two years after the rendition of this judgment, the bill now before the court is filed, the prayer being first to enjoin the judgment at law, and second to enforce a specific performance of the contract.

As before observed, the court of law must hav.e proceeded upon the principle that the contract was at an end. There can be no doubt that the subject was completely within their jurisdiction ; and whether, the decision of the case was or was not correct is not now a subject of inquiry. A court of chancery does not act as a court of errors, to examine or reverse the judgments of a court of law. Upon a case made which comes exclusively within the jurisdiction *436of a court of chancery, and where a court of law could give no relief, chancery will interfere to enjoin or relieve against a judgment at law. But where the courts of law and of chancery have concurrent jurisdiction, and a party electing to pursue his remedy in one fails, he shall not be permitted, as a general rule, to resort to the othor. It is said, however, in the present case, that the complainants seek to enforce the specific performance of a contract, which could not have been done by a court of law. This *is true; and had the present bill been filed during the pendency of the suit at law, and had no defense been made in that case, this court might, and probably would have given relief. This, however, was not the course pursued. Wilkins had a right to elect, and did elect to make full defense in that court. He preferred to submit his controversy to that jurisdiction, and after a full examination the decision was against him. In this decision he acquiesced for two years or more, and, when threatened with execution, comes into this court to have the matter tried over again. I think he is too late, especially-if, in addition to the other circumstances, we take into consideration the fact that Cisna, the person with whom the contract was originally made, is dead, and that this suit is prosecuted against his personal representative.

The complainants, aware of the difficulty they have to encounter in consequence of the decision at law, undertake to distinguish this from ordinary cases. It seems to be admitted that if Wilkins were the sole complainant before the court, the judgment at law would be conclusive, and the bill must be dismissed. But it is argued that Curtis was not a party in that case, and no person who has not had a day in court, none but parties and privies, can be concluded by a judgment at law or a decree in chancery. It is urged that Curtis alone is the meritorious and interested complainant — that Wilkins has no interest — that ho is joined from necessity, or for the sake of form, in order to obtain the injunction — that inasmuch as Curtis has had no day in court he has now a right to be heard — and that the judgment against Wilkins shall not operate to the disadvantage of him, Curtis. This point has been argued with ability and ingenuity. Many authorities have been cited for the purpose of sustaining the position assumed. I feel no disposition to question the force of these authorities, but the difficulty is that they do not, in my apprehension, apply to the case under consideration. In order to ascertain the strength of *437this argument, let us for a few moments examine as to the relative situation of these parties, and inquire whether Curtis appears be¿ fore the court in a more favorable point of view than Wilkins. He claims to be, and is, an assignee, not the assignee of Cisna, but of Wilkins. *The contract for the purchase and sale of the land was entered into by Cisna and Wilkins. When this pontraot was reduced to writing, partial payments were made by Cisna to-Wilkins, and it was agreed that at a subsequent period the land should be conveyed, a further payment made, and other acts performed. .Both parties made efforts for the performance of this contract, but whether it were in fact performed by either is not now the subject of inquiry. Previous to the commencement of any suit, and but shortly after the contract was made, Wilkins assigned toSilliman and Curtis his interest in the contract, conveyed to them the land, and at the same time took from them an.obligation to indemnify him against any claim on the part of Cisna. This assignment was made without the assent of Cisna, the assignees having full knowledge of all the facts connected with the whole transaction. Subsequently Silliman transferred his interest to Ourtis. Thus Curtis, by his own act, became interested in the businoss, and, as far as he could, voluntarily placed himself in the situation of Wilkins. By these transactions the rights of Cisna. could not, it is believed, be affected.

It will not be denied, I presume, that had Cisna, on his part, complied with the contract, he might have applied to a court of chancery to enforce a specific performance by the other contracting party; or he might have resorted, at his election, to a court of law for the recovery of damages for the non-performance by his adversary. O.r if the contract was abandoned, he might recover back the amount which he had paid. If he elected to proceed at law, he must, from .necessity, proceed against Wilkins. Curtis was no party to the contract, and at law Cisna would have no claim against him. But were we to adopt the principle contended for by the complainants, Cisna, by the joint act of Curtía and Wilkins, would be deprived of his legal right; he could not avail himself of the remedy at law, but would be driven to-chancery; a doctrine from which such consequences would result, can not be sanctioned.

The complainants urge that Curtis had no day in court; but can this be said with propriety ? True, he was not a party upon *438the record, but from the bill it appears that he was in fact and in truth-the party in interest. He had undertaken *to indemnify Wilkins against any claim which might be brought against him by Cisna. When the action at law was commenced, he appeared, as is proven by the testimony, and managed the defense* until final judgment, and it is presumed that he will not complain that his rights were sacrificed in consequence of any misconduct or neglect on the part of his assignor.

Upon the whole, I am of opinion that, inasmuch as the subject-matter of this controversy has been settled by the adjudication of a court of competent jurisdiction; was acquiesced in for two-years; and inasmuch as the assignee, under the circumstances of this case, does not come before the court under circumstances any more favorable than those of the assignor, therefore the bill of the-complainants must be dismissed with costs.