CHASE v. MANHARJDT. 339

on a calculation and review of the proceedings, that he had been
charged with too much, the excess should be remitted. Indeed
they admitted, that there was an excess which had occurred by
mistake; which error should certainly be corrected. Chase did not
then assert, that he owed nothing to Bryden; or that, according to
the terms of his contract, he could not, at that time, have been
legally considered as the debtor of Bryden. It was not until some
time after, that he objected to a judgment having been rendered,
at that time, for either principal or interest, on the ground, that
Bryden had failed to comply with the contract on his part.

It appears, that the policies of insurance had been regularly
transferred by Bryden according to the terms of the contract with
Chase, on the 11th of April, 1812; and that the papers alluded to
in the contract of the 26th of March, 1812, were retained by John
Purviance for some time, and are now filed in this case as exhibits
referred to in the answer of David Hqffman.

These facts and circumstances have been collected from the bill,
answers, exhibits and proofs; they are all that have any material
bearing upon the matter now in controversy; other particulars will
be noticed in the course of the investigation.

It does not appear, from any thing in these proceedings, what
was the nature and extent of Richard M. Chase's interest in the
property called The Fountain Inn; but it is quite certain that the
contract of the 26th of March, 1812, was made between this com-
plainant Samuel Chase and James Bryden only;—that no other
persdns were immediately parties thereto. The complainant says
in his hill, that he agreed with Bryden to purchase of him that
property; and in the agreement itself he says, " I agree that on
James Bryden's delivering to me" &c. Hence it is clear, that,
although the assignment and releases were to be made to Richard
M. Chase, yet when so made they were to be delivered to the com-
plainant Samuel Chase. And further, that on Brydenys delivering
those papers to Chase he would give Bryden, " good negotiable
notes for the sum of $6000, payable six months thereafter."
Whence it is perfectly clear, that the delivery of the specified
papers was that act to be done by Bryden, which was to bind
Chase to him unconditionally as his debtor. Consequently, it was
the contracting party Samuel Chase, alone, who could insist on the
performance of it as a condition precedent. It was he alone who
could dispense with it as a preliminary act, or waive it altogether.
Does it then appear, that this act has been either performed, par-