Ness, who has also been examined since the appeal;

1821.

V.

Six Packages of Goods.

for, instead of being simply told at the custom house, United States when he asked for a permit, that he must call again, it appears he stated, on his examination in the District Court, that when he applied for a permit on the 3d of November, he was told at the custom house, that "they wished to examine the goods before they were delivered ;" and that although he did not see Mr. Toler until Monday, he communicated to his clerk, Mr. Crane, what had passed, who doubtless gave the same information to his principal, which will account for the solicitude which he discovered so early on Monday morning to enter the goods which had been omitted in the entry of Mr. Ash. There are other circumstances in this case, that are not here noticed, which render the explanation given by Mr. Toler, to say the least, extremely questionable.

The Court cannot dismiss this cause without expressing its surprise, that more than ten years have elapsed since the filing of the libel in the District Court. As all the witnesses who have been examined since the appeal, reside in the city in which the cause was tried, they might, and ought, to have been examined in that Court, and if their testimony had there been reduced to writing, and used in the Circuit Court, a final decision might have been had many years ago, and before the insolvencies which it is suggested have happened, and have rendered the further prosecution of these proceedings of little or no importance to the parties.

1821.

Brashier

V.

The decree of the Circuit Court is revoked, and the sentence of condemnation pronounced by the District Court affirmed.

Gratz.

(CHANCERY.)

BRASHIER V. GRATZ et al.

The general rule is, that time is not of the essence of a contract of sale; and a failure on the part of the purchaser, or vendor, to perform his contract, on the stipulated day, does not, of itself, deprive him of his right to a specific performance, when he is able to com ply with his part of the engagement.

But circumstances may be so changed, that the object of the party can no longer be accomplished, and be cannot be placed in the same situation as if the contract had been performed in due time. In such a case, a Court of Equity will leave the parties to their remedy at law.

Part performance will, under some circumstances, induce the Court to relieve.

But where a considerable length of time has elapsed, where the party demanding a specific performance has failed to perform his part of the contract, and the demand is made after a great change in the title and the value of the land, and there is a want of reciprocity in the obligations of the respective parties, a Court of Equity will not interfere.

APPEAL from the Circuit Court of Kentucky.

This cause was argued by Mr. B. Hardin" for the appellant, and by Mr. Sergeant for the respondents.*

a He cited 1 Fonbl. Eq. 227. 9 Ves. 415. 2 P. Wms. 243. 4 Bro. Ch. Rep. 329. 469. 391. 1 Ves. jun. 221. 1 Atk. 12.

b Who cited Sugd. Vend. 246. 5 Ves. 720. Note. 1 Ves. jun. 450. 9 Cranch, 456. 8 Cranch, 471.

Mr. Chief Justice MARSHALL delivered the opinion of the Court.

This is an appeal from a decree of the Circuit Court for the District of Kentucky, dismissing a bill brought by the appellant against the heirs of Michael Gratz for the specific performance of a con

tract.

Michael Gratz, who resided in Philadelphia, had purchased from John Craig, of Kentucky, a tract of land containing, by the survey, one thousand acres, for which no patent had then issued. Subsequent to this purchase, the patent issued in the name of Craig, who sold a part of the land to Keyser, and a suit had been brought in the federal Court of Kentucky by Gratz, against Craig and Keyser, to compel a conveyance of the land. Michael Gratz had, in the mean time, sold eight hundred and twenty-four acres, part of this tract, to Robert Barr.

While the suit against Craig and Keyser was depending, Walter Brashier, the plaintiff, who resides in Kentucky, came to Philadelphia on business, and on the 2d day of March, in the year 1807, purchased the residue of the land from Gratz. Brashier had married the daughter of Robert Barr.

The residue of the land was estimated by the parties at 302 acres, for which Brashier agreed to give the sum of $6795 in his negotiable notes, payable in six, twelve, and eighteen months. From this sum was, however, deducted $250, "allowed to the said Walter Brashier, towards the costs and expenses of prosecuting the suits now depending, for the recovery of the lands hereby contracted for, which is ac

1821.

Brashier

V.

Gratz. March 14th.

1821.

Brashier

V.

Gratz.

cepted by the said Walter, as a full satisfaction for all costs, trouble and expense which he may be at, in prosecuting the said suits, and which he hereby agrees and undertakes to manage at his own costs and expense. And it is hereby agreed that a correct and accurate survey shall be made, at the expense of the said Michael, of all the said residue of the abovementioned tract of land, lying within the limits of the original survey thereof, not sold to the said Robert Barr; and if, upon such survey, it shall be found, that the said residue doth not contain the quantity of 302 acres, then, for every one deficient, the said Michael Gratz, his heirs, executors, or administrators, shall pay or allow to the said Walter Brashier, his executors, administrators or assigns, the sum of twenty-two dollars and a half; and if any part of the said residue shall be lost, in all, or any of the said suits now depending, or that may be instituted hereafter, for any part of the said residue, the said Michael Gratz, his heirs, executors or administrators, shall only be liable to refund to him, the said Walter Brashier, his executors, administrators or assigns, the sum of 11 dollars 25 cents, for each and every acre so lost. It being hereby declared, that the said Walter Brashier has purchased the title of the said Michael Gratz, at his own risk and hazard, and so that he shall have no recourse against the said Michael Gratz, for want of, or for any defect in the title to the said residue, or any part thereof, save only the price of 11 dollars 25 cents per acre, for every acre which shall be lost as aforesaid. And the said M. G. for himself, his heirs, executors, and administra

tors, doth covenant and agree, that he or they shall and will, at any time after payment of the notes aforesaid, when thereunto required, by a good and sufficient deed, conveyance, or assurance in the law, convey and assure unto the use of him, the said Walter Brashier, his heirs and assigns forever, all his, the said Michael Gratz's estate, right, title and interest, of and in all the said residue of the above mentioned tract of land.

Mr. Brashier executed his notes in conformity with this contract, and returned to Kentucky, where he requested his brother-in-law, Thomas T. Barr, to attend to the prosecution of the suits then depending. Mr. Barr resided near the place where the Court was held, and Mr. Brashier at the distance of sixty or seventy miles. Mr. Barr immediately employed Mr. Bledsoe, a lawyer of eminence, to assist Mr. Hughes, who had been engaged by Mr. Gratz, and some time afterwards spoke to Mr. Wickliffe, but did not pay him a fee. No progress, however, seems to have been made in these suits, and the plaintiff failed to pay the fees of the officers of the Court, which were demanded and received from Michael Gratz, in the year 1811, and afterwards from his representatives.

The notes for the purchase money were protested for non-payment, and have not been paid.

In 1811, Mr. Brashier came to Philadelphia, when Gratz offered to convey the land on his paying his notes. Mr. Brashier being unable to pay them, Gratz offered to rescind the contract, which Brashier declining to do, the question was referred

1821.

Brashier

V.

Gratz.