McKIM *. THOMPSON. 161

In cases between vendors and purchasers of real estate, the
purchaser, who is not in possession, cannot be called upon to pay
in the purchase money until the title is completed; nor will the
mere fact of his taking possession, entitle the vendor to call upon
him for the payment of the purchase money into court. But if the
purchaser, being in possession, exercises acts of ownership, he may
be compelled to pay the purchase money into court. And the
taking possession, and the acts of ownership, though not mentioned
in the bill or answer, are the collateral facts which may be shewn
by affidavits, or by proofs taken in a manner similar to those offered
upon the present occasion. But, in such cases, that the purchase
money is due, and the amount, are facts admitted and established;
and whether it should be immediately brought in, or whether the
purchaser should be indulged until final hearing, or how much short
of that, are questions which depend upon equitable circumstances,
not necessarily* involved in the principal controversy, that never
would be brought into view, but by such a motion. They are,
therefore, truly and.properly collateral circumstances.

But, in this case, the question is, whether, in the direct progress
of a case, it has been established or admitted, that a party holding
money has no title to it; and is, therefore, liable to be called on
in this way. In this class of cases, it is a part of the principal
matter in controversy—one of the circumstances of it; as much so
as, in the other class, between vendor and purchaser, whether the
purchase money was really due or not. And being necessarily
involved in the main question, the court will not stop or delay the
regular progress of the case to investigate or establish it by
affidavits or proofs taken out of the regular order. The proof of
possession, and the acts of ownership, lay the foundation of that
equity which entitles the vendor to make the call for his money
sooner than he otherwise could do; and, in that class of cases, it
is said to be now quite decided, that, upon motions of this sort,
affidavits of such collateral circumstances may be read, and that it
was a practice to be encouraged, as it shortened pleading, (o)

But there is an obvious distinction between such collateral
circumstances and peculiar equity, and the admission or establish-
ment of facts, which go to shew the real title to the fund proposed

<e) Clarke v. Wilson, 15 Ves. 317; Cutler u. Simons, 2 Meriv. 103; Morgan v.
Shaw, 2 Meriv. 138; Crutchley v. Jerningham, 2 Meriv. 502; Bramley v. Teal,
3 Mad. 219; Wickham v. Evered, 4 Mad. 53; Blackburn v. Starr, 6 Mad. 69; Wynne
v Griffith, 1 Sim. & Stu. 147; Gill v. Watson, 2 Sim. & Stu. 402.

21