mortified, because he has not the greater number on his side. The maxim, cum Platone errare, quam cum aliis recte sentire, has been long exploded, as a self-degrading, and ignoble sentiment. To deliver the dissent, simply without apology, or compliment, is the best. Nothing need be said unless, that, in expressing the less, or more confidence with which the dissent is made, there may be the qualification of saying, It would seem to me; or, on the contrary, to say, totis viribus contra. "Go not with a multitude to do evil," is a maxim; and it ought to be the same, go not with a multitude in thinking wrong.

These observations are not made for the sake of the judges of the supreme court; for I have no idea that they will ever read them; or perhaps come to hear of them; but certainly will not be disposed to pay much regard to them. But it is for the sake of the student who may become a judge, that I give the hint. The fact is, I have been always dissatisfied with the apology, "it is my misfortune to dissent," &c. &c. &c. and, this, in so severe and stern a situation as the administration of justice. Will not the by-standing suitor feel a degree of indignation in hearing such declaration of "misfortune to dissent ?" For, it must be the language of his mind, "it is not your misfortune; it is to your credit; and it is your good fortune, to have the good sense to differ; and so far from softening the matter out of deference to your brethren, you ought, or at least, it would have pleased me better, to have given your words the implication of some dissatisfaction at the error of the judgment of the majority. Not, as the expression would import, that you have had qualms in dissenting, which only arise from some apprehension, not so much of your own error, as of their displeasure. The fear of man bringeth a snare.”

Hepburn and Dundas v. Colin Auld. 5 Cranch, 262.

JUDGE Livingston, in page 273, expresses himself in a very manly manner. I concur with his observations.

LIVINGSTON, J. expressed his non-concurrence in the reasoning of the court, in the latter part of the opinion just delivered by the chief justice. He would dismiss the bill, even if a good title could now be given by the complainants. This court can no more dispense with punctuality as to time in any case, than with any other part of the agreement. But in this particular case, time was of the essence of the contract. The object was payment

of a debt; and from the anxiety of the defendant to resist a decree for a conveyance, and the desire of the complainants to urge it upon him, it is to be presumed that the lands have fallen in value during this delay of the title. The remedy by a decree for a specific performance is a departure from common law, and ought to be granted only in cases where the party who seeks it has strictly entitled himself to it, It is said that by the English authorities, the lapse of time may be disregarded in equity, in decreeing a specific execution of a contract for land. But there is a vast difference between contracts for land in that country and in this. There the lands have a known, fixed, and stable value. Here the price is continually fluctuating and uncertain. A single day often makes a great difference; and in almost every case time is a very material circumstance.

He dissented also from another part of the opinion, which intimates that if this were simply a deficiency of a few hundred acres, it would be considered as a case of compensation. This part of the opinion does not seem to be necessary, and does not affect the present case; but this court can in no case compel a specific performance on terms and conditions. We cannot decree a special execution for part, and assess damages as to the residue.

This is like a contract for 5,000 bushels of wheat. A tender of 4,500 would not be good; and we could not compel the purchaser to take a less quantity than he contracted for. So here the contract was for 6,000 acres. The complainants have a title to a part only; we could not compel the defendant to take that part, and give him damages for the non-conveyance of the residue.

The United States v. Evans. 5 Cranch, 280.

IT will not be inferred that I approve of all the decisions of the supreme court, which I have not noticed. Of some I do approve ; others I have not considered so fully as to have an opinion concerning them. I have taken notice only of such as struck me, en passant, as exceptionable. Amongst these I put down that of the United States v. Evans. It was a writ of error to the district court for the Kentucky district.

In the court below, the judge at the trial rejected certain testimony which was offered by the attorney for the United States, who, thereupon took a bill of exceptions, and became non suit; and, afterwards at the same term, moved the court to set aside the non suit, and grant a new trial, upon the ground that the judge had erred in rejecting the testimony; but, the court overruled the motion, and refused a new trial; whereupon the attorney for the United States sued out his writ of error. By the court, “where there has been a non suit, and a motion to reinstate overruled, the court cannot interfere."

If the writ of error had been brought on the motion which had been overruled, I grant, the supreme court were right in not sustaining it. But I should infer that the writ of error was brought on the non suit, and not upon the motion to set it aside.

But the non suit was suffered; it was voluntary. It was voluntary by compulsion, as the British make their fencibles. It was the rejection of the testimony by the court which occasioned it, and compelled, in its consequence, the suffering a non suit. Non suit is a judgment of the court, where it is ordered, or directed; and it amounts to the same thing where the suffering it, is a consequence of overruling testimony, without which the party cannot go on to the jury with a prospect of success in supporting his action. That a court can direct a non suit where there is no testimony, volente, nolente, the party, is abundantly to be deduced from the English practice; or if not from that practice, it is abundantly established from principle in cases in the "Constitution

al court of errors and appeals, South Carolina, reported 2 Bay, 133, 187, 437, Edanus Burke, President; himself an host; ipse agmen. I cannot cite myself for an authority, but I can cite my reasoning, in a case, ut valeat quantum valere potest; and, on this head I refer to 5 Binney, 319.

Taking it that the party could refuse a non suit, that is to suffer it, when the court rejected testimony, what remained to be done, but to go through the form of taking a verdict which must, in that case, of necessity be against him, and then on a judgment for the defendant, to bring his writ of error, and assign the rejection of the evidence as the error which had been the cause of the finding by the jury? But, on principle, the non suit in consequence of a rejection of evidence, is the court's act. It is their judgment, and refusing to take off the non suit, leaves the matter just where it was; it can do no harm, if it has done no good, to have made the motion.

These matters are amongst the minutia of practice; and I do not at all wonder that the judges of the supreme court having their minds intent upon great objects, and principles of general law, a matter of minute practice should appear not to have been examined; but overlooked in a particular case; I should be surprized to find it otherwise. The proboscis of an elephant cannot take up a needle, though it can involve the trunk of a tree and bear it down. It is one of the most difficult things in the profession of the law, to acquire a knowledge of the smaller rules, and the reason of them—

Non equidem invideo, miror majus

I am astonished that the judges of the superior court having so extensive a province of legal examination, can contract their minds at all to a thing that lies in a nut-shell; in other words, can make out so well as they do in subordinate questions. That they have erred in local questions, has been observed by professional men from other states, so far as I have had an opportunity of conversing with them. But nothing is inferred, detracting from the reputation of their natural powers, or acquired talents; but the impracticability

of being competent to every thing that, under such extensive system, it becomes necessary for them to decide upon. "Non omnia possumus, omnes."

Another consideration is, the judges of the supreme court have not time to read; commensurate with the occasion for it. They are half their time carted in stages, or running in curricles, from the one end of the continent to the other; and how can they have time to read?

It is the same thing with the judges of this state as to the riding, and the constant employment of their time; I mean as to the judges of the supreme court, and perhaps, in some degree, to all the others; to some of them I know it applies, the judges of the mountainous districts; and still I find I must explain myself, or strike out stages and curricles, so far as respects the judges of the mountain districts. For the roads are such that neither stages, nor curricles can run.

But as to judges of our supreme court, were it not that we are confined to matters of a small compass, our time being so much employed, we could not have leisure to read, what under other circumstances, might be necessary for our station. In all mouse-trap matters, as they may be called, we do pretty well, so far as I can infer from the not hearing much complaint from the profession, or the people.

O'Neal v. Thornton. 6 Cranch, 53.

THE judgment of the circuit court of the district of Columbia, was in this case reversed by the supreme court. In that case was introduced the construction of an act of Maryland, which authorized a re-sale of lots in the city of Washington, as often as default should be made by any purchaser. The court below had been of opinion, that the right to re-sell was co-extensive with the original power to sell; that every sale was a new sale, and within the statute; that the terms, "new sale," "first contract," "original purchaser," "second sale," and first purchaser, are all relative terms; that the ex