This is an action of covenant; brought by John and Peter Cooper, (the plaintiffs below,) against Frederick Jordan, (plaintiff in error.) The declaration sets forth articles of agreement between the parties, dated 1st March, 1812, by which the plaintiffs agreed to sell to the defendant three parcels of land, for which the defendant was to pay at the rate of 21/. lawful money of Pennsylvania, an acre, viz. 1000 dollars on the 27th May, 1812, and the residue on the 1st May, 1813. Possession was to be delivered to the defendant on the 15th April, 1812, and on the first payment of 1000 dollars being made, the plaintiffs were to execute a deed of conveyance. The declaration then goes on to aver, that the plaintiffs delivered possession to the defendant on the 15th April, 1812, and executed a deed of con*575veyance which the defendant accepted, 27th May, 1812, and did all other things which by the articles of agreement they' were bound to do, but that the defendant, although he made the first payment of 1000 dollars, 27th May, 1812, failed in paying.the residue on the 1st May, 1813. To this declaration the defendant put in four pleas. 1. That the plaintiffs did not execute a conveyance on the 27th May, 1812; on which issue was joined. 2. That the defendant paid the residue on the 3d May, 1813, and on this also issue was joined. 3. That the defendant paid 1175/. 3s. 10hd. lawful money aforesaid, which the plaintiffs accepted in full satisfaction of the said residue, and this he is ready to verify, &c. The plaintiffs made a general replication to this plea, and issue was joined on it. 4. A release by John Cooper, one of the plaintiffs, under his hand and seal, to the defendant, 3d May, 1813. To this the plaintiff replied, by a short entry on the docket, “ no release, and that the said release was obtain- “ ed by fraud.”
On the trial of the cause, the plaintiffs offered to prove by Peter Cooper, (one of the plaintiffs,) that notice had been given to the defendant to produce a certain deed. To this the defendant objected, but the Court admitted the evidence, and that is the first error assigned. Whatever might be my own opinion of this evidence, if it were a new question, I hold myself bound by the principle established by my predecessors, and frequently acted upon. In a collateral matter of this kind, the practice has been, to admit the evidence of a party to the suit. It was so decided in the Lessee of Douglas v. Sanderson, 1 Teates, 15, and in Levan’s lessee v. Hart, and Means & Litle’s lessee v. Flora, (cited 1 Yeates, 16.)
2. The second error assigned is, in the admission of a deed (offered in evidence by the plaintiff,) from John Cooper and wife, to the defendant, executed and bearing date, 3d May, 1813, accompanied with parol evidence, that the deed was delivered to the defendant, and accepted by him, and recorded at his instance. This evidence was objected to by the defendant, on the ground of its being a different deed from that set. forth in the declaration, and on which the parties Were at issue. In answer to this objection, it was argued on the part of the plaintiff, that, although the original agreement was, that a deed of conveyance should be executed on the first payment of 1000 dollars being made, and although that pay*576ment was made, 27th May, 1812, yet the defendant consentech that the time of executing the plaintiffs’ deed, should be prolonged, and actually accepted a deed made subsequently, So that noxv, it is immaterial at what time the deed was executed. The plaintiffs deny, indeed, that the time of. executing the deed ever was material, but insist, that at all events it is now immaterial, because the defendant accepted the deed which was offered to him. That the time of making the conveyance was a substantial, material part of the agreement, cannot be doubted. It was to be executed on the first payment being made, which was on the 27th May, 1812. So. that the defendant was to have a complete title, nearly a twelvemonth before he was to make his last payment, viz. 1st May, 1813. The title might have been of great importance to the defendant. It might have enabled him to make sale of the land, or mortgage it, prior to the time of making his last payment; and this sale, or mortgage, would have afforded means to make that payment. It surely will not be insisted, that the defendant was to make his last payment before he received his title. And yet, the time for making the last payment, had arrived before this deed was executed; nay, the breach assigned in the declaration is, that the defend~ ant did not pay the residue of the debt on the 1st May, 1813, at which time he had received no deed. The truth of the matter is, then, that the time was material, but the defendant consented to dispense with it, and the plaintiffs, on their part, consented to prolong the time for making the last payment ; that is to say, the original agreement was altered. But how can the plaintiff be permitted to give evidence of an alteration in the agreement, when he has declared upon it, as it originally stood. I confess, I do not see, how such evidence can be received, without a prostration of all legal principles. Where the time of doing a thing is immaterial, evidence of a different time is admissible. In an action on the case, if I declare that the contract was made on a certain day, evidence may be given of a different day, because, if the contract was made at any time before the commencement of the action, it matters not when. But where the time is material, it must be proved, as laid. • So strict is the common law, that on a bond conditioned for payment of money on a day certain, a plea of payment after the day, could not be received; And it was not until a statute gave remedy, *577that such pleas were permitted. It is true, that equity would always have relieved in such case. And it is certain, that in the present case, the plaintiffs are not without remedy. But then, the remedy, whatever it may be, must be pursued in such manner as to give notice to the defendant, that' the plaintiffs intend to prove an alteration of the original agreement. That the plaintiffs cannot recover on their present declaration, was decided in Phillips £s?c. v. Rose, 8 Johns. 392, a case not to be distinguished, in principle, from this. There, the plaintiff was under articles to erect the frame of a mill, by a certain day, and he declared, that he did erect it according to the agreement. But on the trial, he offered evidence, and the Judge at Nisi Frites received it, that the defendant had assented to the execution of the frame at a subsequent time. But the Court in Bank ordered a judgment of nonsuit to be entered, because the evidence was illegal. “ The contract, says the Court, must be proved as it was laid, otherwise the defendant has no notice of what he is called upon to answer. Evidence, that the contract was enlarged by parol agreement, will not support the declaration.” This evidence, therefore, ought not to have been received.
3. The third error assigned, is, that the articles of agreement given in evidence, did not support the declaration, which states that the defendant bound himself, his heirs, executors and administrators; whereas, the heirs are not mentioned in the articles. This variance is not material, because by the law of Pennsylvania, the whole real estate is assets, whatever may be the nature of the debt. Besides, this action is against the man who made the contract, and not against his heirs.
4. The fourth error, is, that no issue was joined on the plea of fraud; and the 5th, that the evidence of Shuler and Windt ought not to have been admitted, because it tended to prove a fraud.
When the parties have considered the issue as joined, and gone on to trial on that presumption, it is with great reluctance that this Court hearkens to the objection of no issue being joined. In the present instance, I think the defect may be remedied, by the rule of the county Court, which directs the prothonotary to join the issue as a matter of course, when the plea is put in, without prejudice to the parties, who, if they please, may join the issue in a different manner. *578When the plaintiff replied fraud in this case, and the defendant made no rejoinder, but went on to trial, the omission to join the issue, may be considered, without straining the rule too far, as a clerical error, which this Court may amend.
It remains to be considered, whether an action of covenant can be supported on the evidence given in this cause, for upon that point, the defendant’s counsel asked the opinion of the Court below. That it Cannot be supported on the declaration as it now stands, I am very clear. But could it be, if the plaintiffs were permitted to amend the declaration, and should set forth the alterations of the agreement which took place ? It is an important question, which may frequently occur; for it often happens, that agreements are not performed as originally intended, some alteration having been made by consent of both parties, and that too by parol. That a man should be altogether without remedy, when he has conveyed his land, when the purchaser had agreed to pay a certain price, and when the execution of the deed of conveyance was postponed with the consent of the purchaser, would be a reflection on the administration of justice. There could not be a more palpable fraud,, than the acceptance of a deed by the purchaser, with an intent to evade payment, under the plea of the vendor’s not having strictly complied with his covenant. There can be no doubt but equity would compel payment: but we have no Court of Equity. What then is to be done? We may do as has been done in other cases, where the forms of the common law were inadequate to the occasion; we may frame a declaration suited to the circumstances of the case. In the first place, set forth the covenants, according to the articles of agreement, and then shew the alterations which had been made by the consent of the parties. That equity is part of the law of Pennsylvania, has never been doubted; and that the defendant may put in a plea, founded upon equity only, is equally clear. This was decided, in the case oi Pollard v. Shaffer, (1 Dall. 110,) in which the opinion of the Court was delivered in a very powerful argument, by Ch. J. M‘Kean. If the defendant, then, may plead, on principles of equity, why should not the same indulgence be extended to the plaintiff? We have never suffered ourselves, indeed, to depart, altogether, from the forms of law ; for, I believe, it has not been supposed, that our Courts could take cogni*579sanee of a bill for the specific execution of an agreement. But when the object is to recover debt, or damages, there is " no reason why the usual form should not be somewhat relaxed, in order to reach the equity of the case. The propriety of so doing, has been long ago perceived, and we are not without precedent to guide us. At law, it-was necessary to make proferí, -in an action of debt, on a bond, and, consequently, in Pennsylvania, a man who had lost his bond, must have lost his debt, if the rule had been strictly adhered to. To obviate this difficulty, the Court permitted the plaintiff to-declare, according to the truth, that the bond was lost, and, therefore, could not be produced: This decision has been universally applauded: but this may be said to be büt a trifling alteration,- the declaration, in all other respects, remaining in strict form. Still it was an alteration so essential, that without it, the action could not have been supported. But ■ we have gone much farther where the case required it. Where debts are contracted by two persons in partnership, and one dies, at law, the action can be supported only against the surviving partner; while equity, looking to the justice of the case, permitted recourse to be had to the estate of the deceased partner, because both had- made themselves liable for the debt. A case arose in Pennsylvania, in which it was necessary to break through the pales of law, or suffer great injustice to be done. The deceased partner left an estate sufficient to pay the debt, while th.e survivor was a certified bankrupt. An action was brought against the executors of the deceased partner, and this Court supported it, in spite of the remonstrances of the defendant, who insisted on the rule of law. This was the case of Lang, &c. v. Keppele's executrix. 1 Binn. 123. Both from principle and precedent, then, we should be authorised to permit a declaration in covenant? according to the truth of the case. It is objected, however, that there is no occasion for this innovation, because, where land has been conveyed, the law would imply a promise to pay for it, so that an action of assumpsit might be supported. But that action would not answer the purpose so well as' the action of covenant; for it often happens, as it did in the present case, that the greatest part of the written agreement is preserved, and very trifling alterations made. In this case, for instance, there has been no alteration in the price of the land. But how would you come at the price in *580an action of assumpsit? On proving that the defendant had accepted a conveyance, the law would imply a promise to pay as much as the land was reasonably worth. But that would be leaving a matter in uncertainty, which the parties had fixed by their agreement. And the agreement would not be given in evidence, because it is against rule to support an action on the case, by the evidence of a specialty. Justice, therefore, could not be done. Many other inconveniences might be pointed out, resulting from an action of assumpsit; so that I see no certain mode of doing equity to both parties, but by issuing the writ of covenant in the usual form, and permitting the declaration to partake so much of the nature of a bill in equity as to set forth the truth of the case. To this the defendant may plead any thing which in law or equity will serve him, and thus the parties may go to trial on the merits of the case.
I am of opinion that the judgment of the Court of Common Pleas should be reversed, and a venire facias de novo awarded.
Gibson J.In Pennsylvajiia, a party on the record has always been deemed a competent witness to prove the service of a notice.
One of the issues in the cause was joined on the averment of the plaintiff’s having, according to his covenant, executed and delivered a conveyance to the defendant on the 27th May, 1812. The jury were instructed, that evidence of a conveyance executed by the plaintiff, and accepted by the defendant, on the 3d May, 1813, (the date of the deed given in evidence) maintained the issue on the part of the plaintiff. I admit that the deed being dated of a day subsequent to the period when it is alleged to have been delivered, would not be conclusive as to the actual time ; but that the plaintiff might shew it was, in fact, delivered on the day laid in the declaration. If the. issue had been left to the jury on that ground, all would have been well enough. But it is undoubted that the plaintiff’s case must be proved as it is laid. Phillips v. Rose, (8 Johns, 392,) and the cases there cited are direct authorities. The Courts by which those cases were decided, have not, as our’s, chancery powers, but follow the common law precedents in their system of pleading: but with us there is the same convenience and advantage in adapting the pleadings to *581the truth of the case. The plaintiff, addressing himself to the equitable powers of the Court, ought to disclose such a case as would entitle him to equitable relief: but if he sets out a case that will entitle him to recover at law, he ought to prove a case that will entitle him to recover at law If, instead of being founded on a specialty, the action were founded on a simple contract, subsequently altered, by the agreement of the parties, from its original terms, would it not be necessary to declare on the contract as it existed at the time of bringing the suit ? There is the same reason to require, in the present instance, the plaintiff to set out the truth of the case. The declaration, is in effect a bill in equity; for in England the plaintiff could not recover in a Court of law: I cannot, therefore, see why those equitable circumstances that are the very foundation of the action, should not be set forth. Performance by the plaintiff at a subsequent day, and acceptance by the defendant, is in equity equivalent to performance strictly at the day, and ought to have been alleged here. Principles of equity cannot be administered through common law forms, strictly such, without having recourse to fiction, which leads to serious inconvenience. The facts as they exist ought, in all cases where it is practicable, to be set forth. That might, I apprehend, be done in every instance except where the action of ejectment comes in the room of a bill for specific performance. Under our system it is sometimes absolutely necessary to change the form ; and of this Lang v. Keppele, 1 Binn. 123, is a signal instance.
It is also assigned as error that there was no replication to the defendant’s plea, which set forth a release; and that if the replication of “ no release and per fraudem,” be considered such, then issue should have been taken or a rejoinder put in. In the case exhibited, by the paper book furnished me, it appears the plaintiff replied generally to all the pleas, and took issue, and afterwards replied, without the leave of the Court, “ no release and per fraudem.” This last was a nullity. The replication of “ no release” is insensible and void ; and though “per fraudem” might have been put in if the plaintiff had not replied before, yet the statute of 4 & 5 Ann. c. 16. which authorises a defendant to plead double with the leave of the Court, does not, except in replevin, extend to a plaintiff; and even a defendant can plead double only to the declaration, for he cannot rejoin two several matters to the *582plaintiff’s replication, Warren v. Ivie, 2 Str. 908. As to the objection against the parol evidence offered to establish fraud *n defendant, it is sufficient to observe, that the evidence did not go to shew fraud in obtaining what the defendant calls a release, but fraud in retaining the money; the evidence was therefore plainly admissible to repel the allegation of payment. The clause acknowledging payment, and releasing the grantee, which is usually inserted by scriveners as a matter of course, has not the operation of a release, and cannot be pleaded as such ; and is besides but slight evidence of actual payment. I am of opinion that the judgment be reversed.
Duncan J.The Coopers brought an action of covenant against Jordan. The declaration states, that on 11th March, 1812, it was covenanted between the parties, that the Coopers did, for certain considerations, grant, &c. to Jordan, three several pieces of land, and that Jordan should pay therefor 21/. per acre, in manner following, viz. 1000 dollars on 27th May then next, and the remainder on 1st May, 1813, and that upon the first payment being made, they would give to Jordan a good and lawful deed of conveyance, and deliver possession on 15th April, 1812. It avers, that on 27th May, 1812, they did make, seal, and deliver unto Jordan a good and lawful deed, which, on the same day, he did accept, and did deliver the possession on 15th April, 1812. The breach assigned is, that although Jordan did pay the 1000 dollars on 27th May, 1812, yet he hath not paid the remainder of the consideration money. Jordan pleads, 1. That the Coopers did not make and deliver a deed for the lands on 27th May, 1812. 2. That he paid the remainder of the consideration money on the 3d May, 1813. 3. That he paid them on 3d May, 1813, 1175/. 8s. 10d. which they accepted in full satisfaction. 4. That John Cooper, on the 3d May, 1813, acknowledged the receipt of 1550/. 3s. 10d. in full for the consideration money, and did release Jordan. To the three first pleas the plaintiff replies generally, and issue is joined. To the fourth, no release, and that the release was obtained by fraud. ' On the trial of the cause there were hills of exceptions on the admission of testimony, and a bill of exceptions to the charge of the Court. The plaintiff in error further contends, that there has been a mis-trial, as no issue was joined on the fourth plea, there being no rejoinder to the re*583plication of no release ; and that the release was obtained by fraud. This objection will first be disposed of; the loose short hand mode of pleading in our Courts may in some instances be productive of inconvenience and uncertainty j yet a party has it in his power to prevent this; for, on motion, the Court would enter a rule to draw up the pleadings at large. Where a party has gone on to trial without a formal rejoinder to a replication of his adversary, I would struggle to prevent him from taking advantage of this. Our pleas are short entries, not drawn up in form. One leaves instructions with the clerk, and if there is any thing on the record from which it can be drawn that such instructions were given, the Court has constantly supplied the defect of formal entries. Brown v. Barnet, 2 Binn. 33. Where the word “ issue” is inserted, after issuable plea, the omission of joining the issue is a clerical mistake, and cannot be taken advantage of on a writ of error. Here was no omission on the part of the plaintiffs below. They tendered an issuable replication to the pipa of release. The Courts in Massachusetts have proceeded one step further than has yet been taken in our Courtsj for they have decided, that if a party has appeared and defended the action before the jury on an issue, tendered by the plaintiff, but not joined, the verdict on such issue and judgment thereon, will be supported. Whitney v. Cochran, 9 Mass. 532. The words “ and issues,” were considered tantamount to a direction to the clerk to join the issue. ' Here the general directions to the clerk by the rules of Court were instructions to the clerk to join the issue. It was a clerical omission not to be taken advantage of after verdict. The case falls clearly within the rules of Court, and the power of the Court to make such rules since their decision in Vannater v. Anderson, 3 Binn. 417, cannot be questioned. It was decided, that under the general powers of the Common Pleas to regulate its practice, it had authority to make a rule requiring affidavits of defence, and directing judgment if no affidavit was filed within a certain time. That rule was admitted to be questionable, and. was certainly liable to objections, which cannot be made to this. Being considered by the Court as doubtful, yet having been established, the Court would not pronounce it to be void. There is in this no error. As to the replication being double, I consider the defendant to have taken issue on themj and although he might *584have taken advantage of this on demurrer, the verdict will cure it. However informal the replication was, the issue was not immaterial.
The second error assigned is, the admission of one of the plaintiffs to prove notice on the defendant to produce certain deeds. It will be observed that one of the deeds was the very one which Jordan had pleaded in bar of plaintiff’s action. It is very questionable whether a bill of exceptions would lie to the evidence received by the Court. The Court, on the proof of the notice, decided that the plaintiffs might go into parol proof of the contents of the deeds, and thereupon the defendant’s counsel produced them, and delivered them to the counsel of the plaintiffs.' The deed from Cooper and wife was then offered in evidence and received, and exception taken to this. The contents of the deed were not given in evidence. Where then is the injury done to the defendant? The plaintiffs might have waved the parol evidence of the contents. The decision of a Court, that evidence shall be allowed of the contents of a deed, which evidence is not given, but the deed itself, would not strike me as a reason to reverse a judgment. The Court say, on this notice we decide that the plaintiffs may give parol evidence of the contents of a deed. The defendant, rather than this should be done, produces the deed, and delivers it to the plaintiffs. Nothing followed on the decision. No consequence resulted from it. All was done away by the production of the deed. The secondary evidence was not given, because the defendant put into the plaintiff’s hands the primary. But the plaintiff was competent to prove the notice. Whatever may be the rule in England, and in other states of this union, in this state the practice has been, and I believe universal, for the party to prove the service of notice, to produce papers on the trial of a cause, to prove notice of taking depositions. The gentlemen of the bar concur, that this has been the practice here, and I know it to have prevailed in the Courts of Common Pleas, in the Courts at Nisi Prius, and the Circuit Courts, and I never heard it called in question.
The third error is the admission in evidence of the conveyance of 3d May, 1813. It is alleged by the plaintiffs in error, that there is a variance between this deed and the deed alleged in the declaration; that being stated to have been executed, delivered, and accepted on 27th May, 1812.
*585It is admitted, that if the day is not material, the defendant cannot make it so by his plea. At law in executory contracts, the day of performance may be material. But, this does not hold in equity. The day there is only modal, unless it is made essential by the express contract of the parties,or some special circumstances exist destroying all claim to the interference of a court of chancery. A court of equity frequently decrees a specific execution of articles, where the action has been lost at law by the default of the party seeking the performance, if it be conscientious that the bargain should be performed. To sustain an action at law on executory contracts, performance or the offer to perform must be averred according to the very terms of the contract. In equity this is not necessary. When chancery interposes to compel the performance of an act which has been covenanted to be performed, it always treats the subject as if it had been performed at the time contracted. The act which chancery decrees to be done, is the same act as would have existed, had it been done when it was agreed to have been done. Reeves' Domestic Relations, tit. Chancery, 446. Now as our Courts of law, in the usual course of their proceedings, adopt the principles of a court of equity, of considering, when justice requires it, that to have been performed which ought to have been done, and when it ought to have been done, the performance is then stated according to its equitable operation, and I can see no real difficulty in considering this by relation as performed according to the terms of the contract j the defendant himself having so considered it, by the acceptance of the deed, and having enjoyed the benefit of the contract by the delivery of possession on the day stipulated. If this be not so considered, then the plaintiffs are without a remedy on the covenant of the defendant. They have executed and delivered the deed. The defendant has accepted it and put it on record. They have delivered possession which is now retained by the defendant. The defendant has waved the performance on the day ; has accepted a com eyance ; admitted a performance, substantially, as if it had been performed on the very day. The variance here cannot be fatal. The matter alleged, and the matter offered to be proved, agree in every thifig, except the day. If that be no material part of the issue, then the variance is unimportant. It is, to be sure, a rule in pleading, that every material fact • *586that is issuable and triable,'must be averred to have happened on- a particular day. It is however equally so, that it is not necessalT td prove the day precisely as laid, unless the particular time is material. Thus in an action on a promissory note, stating, that on such a day the defendant made the note; proof, that he made a promissory note on a different day would be sufficient. Phillips’s Evidence, 168. And yet the objection would equally hold, that it is a different contract. The'medium of proof cannot make a difference ; whether it be by record, deed, or'parol proof, the day of acceptance is no more material than the day of contract. In Brooks v. Bemiss, 8 Johns. 455, in an action for a libel, the defendant pleaded the general issue, with notice of special justification, that he would give in evidence, a record of a trial of June Term, 1810. The record produced, was of a trial in June, 1809. ■ The variance was held not to be material, and the record admitted. It would have been admissible in special pleading. The time is not material, so as it appears to be before publication of the libel. If it was to be considered as a specific allegation of a material time, there would be a repugnance between the allegation and the proof. But if it be only a substantial allegation of the fact of delivery and acceptance of the deed, of a time which is shewn to be before action brought, the variance is immaterial, and the proof in substance supports the allegation. If a profert had been made of the deed, or if it had been laid with a prout patet, or if the declaration had stated, that it bore date that day, then it might have been considered‘a description of the deed, and the variance fatal. But this is an allegation of substance, and not of description. There can be no good reason why, when a fact is not material to be alleged on the exact day, and need not be proved exactly as laid, it should become material, because it is to be proved by deed. There are two sorts of allegation ; the one matter of substance, which may be substantially proved ; the other matter of description, which must be literally proved. This I take to be of the first class, and that it was substantially proved; the day being altogether immaterial on a contract executed; the time of delivery unimportant; as it was accepted as a performance of the contract. But it is contended, that the plaintiffs should have specially set this out as a new agreement to accept on that day. This could not *587have been done. If there was a par.ol agreement substituted for the written one, it could not be the foundation of an ac-. tion of covenant. Nor could it be joined in an action on the sealed instrument. To admit this, would be an innovation on the forms of pleading; would be adding a new substantive cause of action bj’ parol, contrary to the writing, and to which the defendant was not summoned to answer. Nothing but the high respect I entertain for the opinions of the other members of the Court, and a diffidence in my own, where I may be so unfortunate as to differ from them, could make me distrust the opinion I have formed. I have given their opinions their deserved great weight, and endeavoured, but in vain, to make my judgment bend to them. In executory contracts, however the law may be, I feel assurance in the correctness of the principle, that where the party has enjoyed the whole benefit of the contract, has accepted a conveyance of it at a subsequent day, the day is as immaterial as the day when the contract was entered into, or as the day laid in an indictment for murder. . The act being done and accepted, the property enjoyed without molestation, according to the letter of the contract, totally extinguishes the materiality of the day. -The party has notice. How can he be taken by surprise ? He has enjoyed the property; he has accepted the deed; he pleads the deed in bar of plaintiff’s recovery. He has notice to produce it.; he does produce it. What is the reason that the time and place must be laid of all issuable facts ? The time that it may appear the action was brought after cause of action arose. The place -on account of the venue. Yet this is not material even in local actions, where the fact may be proved any where within the county, although at a different place, unless where the place is set out by particular description, as by metes and bounds, or by name. Nor is the precise time to be proved, unless it is necessary to support the action, or it is on a writing set out by way of description. Yet I am reconciled to the course here adopted by the Court; the mode of setting forth the execution and acceptance, or tender of a conveyance, in the declaration, after the day, so that the defendant may be apprised, and thus the case proceed to trial. As the Courts here, are in the habit by the medium of a jury, of doing, in such cases what a Court of Chancery would decree, the non-performance at the day, the lapse of time may be accounted for by *588a plaintiff, and defendant being informed of the fact, be prepared to shew that the lapse of time is attended with such circumstances, as that there ought not to be a recovery. A declaration thus modified, would answer the purposes of justice, better than putting the plaintiff to an action of as~ sumpsit, either express or implied, which would not in all cases meet the justice of the case, and in many would be attended with difficulties, and in one case operate most unjustly. That is where the purchaser dies, having conveyed away the land, and not leaving an estate sufficient to pay all his debts, by specialties and simple contracts.
4. The fourth error assigned is, in the admission of the evidence of Edward Nagle. This, on the principles already stated, was clearly admissible. It tended to prove the important fact, the acceptance of the deed, and the determination of Jordan, to hold the land by it.
5. The evidence of Shuler and Windt. This was equally so. On the issue on the plea of payment, neither the receipt nor the acknowledgment in the body of the deed, nor the acquittance and release estopped the plaintiffs from shewing the truth of the fact, that the money was not paid. There being no Court of Chancery to put the release out of the way, it was competent on this plea to grant relief by shewing the receipt to be merely formal, that the deed was entrusted to Jordan without payment of the money; the sole evidence of payment was destroyed.
Five points were made by the defendant’s counsel, on which the instruction of the Court to the jury was required.
1st. Did the proof of the execution, delivery, and acceptance of the deed of the 3d May, 1813, support the plaintiff’s cause in the first issue ?
I am of opinion, for the reasons I have stated, that it did.
The 2d and 3d present nearly the same question. The 2d, Did not the execution, delivery, and acceptation of the deed of 8th May, 1813, annul and supersede the written articles so as to take away from the plaintiffs the action of covenant on these articles?
3d. Did not the release in the body of the deed, and the receipt at the foot operate as a conclusive bar to any recovery by the plaintiffs- in an action of covenant on the articles of agreement ?
I have not heard, nor can I conceive, any reason, why *589when one party has performed his covenants by delivery of the conveyance, this should supersede and annul the covenants of the other. It is this very act of performance which enables him to support his action of covenant. What are the covenants ? The Coopers covenant to convey certain lands for a certain sum. Jordan covenants to pay that certain sum for the lands when conveyed. The Coopers say they have conveyed, and therefore they demand the money. Will it lie in the mouth of Jordan, in answer to this demand, to say, “ True, you have performed your covenants, I have got your lands, the possession and the title; have enjoyed the benefit of these covenants, but the performance of yours has extinguished my covenants.” This is a course of reasoning my understanding cannot comprehend.
If the third point is tenable, then, however clearly the plaintiffs might have established the fact, that the money was not paid,-and the defendant made a fraudulent use of the deed entrusted to him by converting it into a release of money which never had been paid, we having no Court of Chancery, they would be without any remedy.
But as a court of chancery could relieve, whatever a court of chancery would do, on the state of the pleadings, the replication of non solvit, no release, and that it was obtained by fraud, our Courts constantly exercise the same equitable powers. But this could be done in courts of common law. There was a case, the same as this in all respects, decided by the general court of Maryland. Henry Oneal v. William Lodge, 3 Har. M'-Hen. 433. It was an action of covenant on the sale of a tract of land, at 45 shillings per acre. 1’he plaintiff shewed on the trial that the tract contained 98 acres, and that the contract for sale was made on 1st August, 1789; and that on the 29th of the same month, after the date of the deed, 751. were paid in part payment of the land; the defendant produced á deed which had a receipt indorsed thereon for the whole consideration,and then his counsel moved the Court to instruct the jury, that the receipt on the deed, and the acknowledgment of payment in the body of the deed, were conclusive evidence of payment.
But the Court, as the Court here have done, refused to give this direction, and said this was only evidence of payment, because it was but the mere formal part of the deed, when, perhaps, nine times out of ten, there was not a shilling *590paid. There was a conveyance of the land, and yet covenant supported on the articles ; there was a receipt indorsed; acknowledgment of payment in the body of the deed, and so far from being considered conclusive, it was, and very justly, considered as evidence of the very lowest order.
See Hamilton v. The executors of JIT Quire, ante, 355.The fourth and fifth points are but repetitions.
In my view of the case, I cannot say that there is error either in the admission of the evidence, or opinion of the Court. But as .the majority of the Court are of a different opinion, the judgment is of course reversed.
Judgment reversed, and a venire facias de novo awarded.